The endless search for truth
Richard Marshall interviews Andrei Marmor.
Andrei Marmor is a fo rizzle legal philosopher who has written Law and Interpretation, Interpretation and Legal Theory, Positive Law & Objective Values, Law in the Age of Pluralism, Social Conventions and Philosophy of Law. He’s impressed by Hans Kelson and thinks Anglo/Americal legal philosophers have underestimated him. He thinks the Constitutional regime of the USA is entrenched and problematic compared to younger regimes like Canada and the EU. You can’t really be saying anything serious about philosophy of law if you haven’t absorbed his stuff. Which means that if he was a Cadillac he’d be the one with da Bomb Dayton Rims.
3:AM: What was it that drew you to philosophy? When did it occur to you to become a philosopher and what are its rewards?
AM: Tim Williamson once told me that the most difficult task in philosophy is to say something that is, actually, true. Over the decades of doing philosophy I have come to learn, over and over again, how true this is, and how difficult it is to say something in philosophy that is, indeed, true. But, personally, I find this endless search for truth, the need to make a careful argument, and the need to revise one’s argument once its weakness is exposed, to be the most exciting profession one can dream of. Abstract yet careful and accurate thought, in its purest form, is, I think, one of the most remarkable achievements of our species. Having the luxury to do philosophy should not be taken lightly, and personally, I am truly grateful for the opportunity.
Whether I also deserve this opportunity took me decades to agonize about, and I am not yet sure that I have an answer, to myself, anyway. Which is partly the explanation of my legal training. I studied philosophy and law concomitantly at Tel Aviv University. I studied law because I wasn’t sure that I could become a philosopher, and I studied philosophy because I wasn’t sure that I want to become a lawyer. So here I am, decades later, still half in a philosophy department and half in a law school, and still agonizing….
3:AM: In your book ‘Interpretation and Legal Theory’ you pose an interesting question about the role of philosophy in giving accounts of law. Law is a social practice, so if philosophy is about giving an account of its nature, why shouldn’t we turn to sociologists, historians, economists, theologians? How do you go about defining the philosophical project with respect to law?
AM: There is a curious and confusing story behind this issue. Historically, philosophers have often engaged with issues and asked questions that later came to be answered by other disciplines. Over the millennia philosophy has undergone a long process of purification, so to speak, shedding questions better left for other sciences to try to answer. And then, of course, philosophy reformulated its questions on the sciences that have emerged, putting pressure on the kind of answers they offered and raised new ones as a consequence. So this is really a process all over the philosophical domain, and philosophy of law is no exception. But if we focus on the emergence of contemporary analytical philosophy of law, a more curious and somewhat special picture emerges, one that gave rise to endless confusion. When analytical philosophers started to think about the main questions about the nature of law, somewhere around the 1950s, and mostly in Oxford, the dominant view in philosophy was the so called “ordinary language analysis” school of thought.
Prominent philosophers at the time, such as Wittgenstein, Ryle, Austin and others, took natural language to be both the main guide to philosophical answers, but also, the main source of philosophical problems, problems that they thought mostly emerge from linguistic confusions. Thus the idea came about that what is truly unique to philosophical inquiry is the realm of the conceptual, and that philosophy just is a form of conceptual analysis. Nobody has done more to entrench this notion in philosophy of law than H.L.A. Hart, of course, whose book The Concept of Law, published in 1961, is rightly considered the founding text of analytical legal philosophy.
Now I have to admit that it took me a very long time to realize that Hart himself was not a true believer. He paid considerable lip-service to the official philosophical dogma at the time and certainly gave the impression that his work is a form of conceptual analysis, as the very title of his seminal book would seem to suggest. But then, if you look closely at the actual questions that preoccupied him in this book, you come to see that there is nothing particularly conceptual about them, not to say, linguistic in essence. What he was really after is precisely the question that emerged almost a century earlier, in the mid 19th century, and mostly by John Austin, of whether the social phenomenon we call law is something that can be fully reduced to facts of a non-normative kind, that is, to facts about people’s actual conduct, beliefs and attitudes. And his whole project, I think, was not essentially different from Austin’s, namely, to try to provide an affirmative answer to the possibility of reduction.
In other words, I think that Hart’s main philosophical question about the law is the question about the possibility of reduction: can we reduce the essential features we identify in law and our legal practices to facts about people’s behavior, beliefs and attitudes. And his whole work is an attempt to show how this can be done, without compromising the complexity of our legal concepts and the various normative beliefs and attitudes we associate with legal requirements of various kinds. Understood in this light, I fully share the endeavor, I would consider myself a Hartian, so to speak. I think that the possibility of reduction is central to philosophy of law, it is a pivotal question about the nature of law and how it relates to other normative domains, such as morality and religion.
Furthermore, I think that the main objections to Hart’s legal positivism, as his view came to be called, are best seen as arguments against the possibility of reduction. These views aim to show that law cannot be reduced to facts of a non-normative kind because the law is, partly but necessarily, a matter of moral truths. So I think that this debate about reductionism is at the very core of contemporary philosophy about the nature of law.
3:AM. In that book you say that it is with Ronald Dworkin, Hart’s replacement as Oxford Professor of Jurisprudence, that the methodological issues of philosophy’s approach to law have become foregrounded. You label it the ‘methodological turn’. What Dworkin thinks is important is a distinction between rules of law and principles which govern what legal philosophers call ‘rules of recognition.’. Rules are simply on/off imperatives whereas principles are based on reasons that might be disputed. Legal Positivists think that principles are established by convergence of practice. So law is a matter of social facts. Natural Law tradition denies this and argues that legal norms are moral. Dworkin is a kind of anomalous Natural Law guy. Hart is the parade case Positivist. You’re a positivist so what do you see as the main substantive issues in this debate and what is at stake? You think Dworkin’s approach is wrong and that the sting stung no one. Can you give your basic argument for this?
AM: Let me try to answer both of these questions about Dworkin and the issues that are at stake. As far as I can see, there are two main types of objection that Dworkin has raised over the years against Hart’s legal positivism. The first type is precisely the kind that aims to show why Hart’s reductionist project is bound to fail. The argument here is very simple in its core: if it is the case that what the law requires is, at least sometimes, a matter of moral truth, then it just cannot be true that law is reducible to non-normative facts. Dworkin’s argument about legal principles is a prominent example of this type of argument. The idea that there are legal norms that can only be deduced by moral reasoning, aims to show that law is just not the kind of social phenomenon, as Hart envisaged, that can be reduced to rule following, explained in terms of beliefs and attitudes people entertain about social rules they follow. So this is really an argument about the possibility of reduction.
The second and more recent type of argument that Dworkin leveled against Hart is, indeed, a methodological one. Dworkin came to doubt that philosophy of law, as descriptive philosophical enterprise, is possible at all. Here again, the core of the argument is simple, focusing on the essential role that interpretation plays in any understanding of law, and the evaluative nature of interpretation. If any attempt to articulate what law is, in general, as in particular cases, is necessarily a form of interpretation, and if interpretation is necessarily partly a matter of forming and defending evaluative judgments, then every conclusion bout the law, again, both in general and in particular cases, is bound to be partly a matter of moral or other evaluative judgments.
I have great respect for both of these lines of criticism and I think that there are many valuable insights in Dworkin’s theory. However, I also think that both arguments eventually fail. I don’t think that there are legal principles, as Dworkin envisaged, and I think that Dworkin’s methodological argument is based on a very implausible premise, mostly, it is based on a very questionable conception of language and linguistic communication. The essential point, underlying both of these counter arguments, is that interpretation, at least as Dworkin understands this term, is not the ordinary way in which we grasp some content communicated; interpretation is the exception to the normal understanding of communicated content, it arises when something is not entirely clear, when there is some room for doubt or a particular question arises. But for something to call for clarification there must first be a great deal that is already clear in the relevant context. Needless to say, the arguments are very complex and I cannot give the details here.
3:AM: Although Hart is the key figure that Dworkin targets in the postivist camp, you’re a fan of Hans Kelson. Kelson is a more obscure figure than Hart but you see his arguments as seminal. Can you explain what Kelson brought to the table and why he’s so important to your conception of Positivism?
AM: Well, Kelsen is not an obscure figure in legal theory if you think about it globally. True, Kelsen has never quite managed to catch the imagination of Anglo-American jurists, even though he spent the last decades of his long academic career at Berkeley. But he was, and may still be, the most famous and well known legal theorist in the rest of the world. To begin with, many of H.L.A. Hart’s ideas in The Concept of Law are heavily influenced by Kelsen. In fact, as I try to show in my recent book on Philosophy of Law, Hart’s legal theory is pretty much a reductionist version of Kelsen’s.
They may have differed in their methodological presuppositions at some key points, but all the essential elements of Hart’s philosophy of law were already articulated, and in great detail, in Kelsen’s writings. The terminology is different, but the main ideas are very similar. What Kelsen brings to the table, however, is much more than a claim to have been there first…. His own version of legal positivism as a form of a “pure theory of law” is very intriguing and philosophically challenging. The idea is that law cannot be explained by something else, more foundational in nature. And the question of how to reconcile this anti-reductionist project with the main tenets of legal positivism is the main challenge, I think, that faced Kelsen’s philosophy of law.
I don’t think that he quite met the challenge, and in fact, I think that Kelsen’s failure to defend his anti-reductionism is precisely what motivated Hart to offer a much more sociological account of law, but the attempt itself, and the details of Kelsen’s theory, have considerably enriched philosophy of law. Much more so, I think, than Anglo-American jurisprudence tends to recognize.
3:AM: You agree with Brian Leiter’s distinction between ‘reductive-displacement’ and ‘agenda-displacement’ theories where instead of asking for the normative reasons for a law, you just look at what anyone would need to have to predict what the law will do on any issue. This is a legal realist position and what it has to make these predictions is positivism, which instead of being about the nature of law itself is instead ‘… about a scheme of interpretation: it is a question about the collective meaning and self-understandings of a complex social reality.’ Is this right? Can you explain this position, which may initially strike some people as an evasion of philosophy of law questions, rather than an attempt to solve them.
AM: Well, I agree with Brian Leiter’s position, at least his earlier position on this topic, that the American Legal Realists were simply not interested in any major philosophical question about the nature of law. They were much more directly interested in two other projects: how to advance legal research and how to improve legal education. The research they sought to advance was first and foremost empirical in nature. They wanted to find out how law is actually shaped by sociological, economical, and psychological factors in the real world, and how can we make better scientific predictions about the law in the future.
So the project was, by and large, a scientific project, shaped by views about the nature of the social sciences at the time and the kind of tools that are needed to make the relevant types of scientific predictions and generalizations. I think that this is a very worthy project, and one that does not need philosophy to move forward. What it needs is good social science. I think that part of what makes the some of the early realists’ writings a bit questionable in retrospect is the fact that their ideas about the need to engage in empirical legal research were somewhat ahead of their views about the state of the social sciences at the time, that is, in the first few decades of the 20th century.
Some of the realists had pretty naïve views about what psychology and sociology can deliver. But with the advances in social sciences and the more cautious views we now have about empirical research in these areas, the Realists’ project is a thriving academic endeavor, carried out these days by economists and econometricians, sociologists and psychologists. As I said, I don’t think that these scientists need our philosophical support and I certainly don’t think that this kind of empirical research directly challenges any philosophical views about the nature of law.
3:AM: Leiter dismisses the kind of disagreements that Dworkin wants to argue undermine Kelson and Hart partly on the grounds that there aren’t enough of them. Convergence of practice is massive, disagreement happens at the margins. But you think that the requirement that there be reasons for people following, say, the rule of recognition, are still required even if not for the reasons that Dworkin argues for. Is that why you think Raz is so important ? Can you say something about why you think it necessary to defend the binding character of legal norms? What does Raz say and why do you agree with him?
AM: Let me try to answer some of these questions briefly. One of the main challenges we face in legal philosophy is to try to explain in what sense the requirement of law are binding, and what is the kind of reasons for action they purport to provide. When the law tells you to do (or not to do) something, it typically tells you that you ought to do it, and you ought to do it partly because the law says so.
So the question here is, at least, twofold: first, to explain what kind of ought is meant here; is it necessarily a moral ought? If it is, what gives the law this necessary moral dimension? If it is not necessarily a moral ought, what other kind of ought might be in play here? Second, why would it matter that the law tells you to do it? If you have reasons to do it anyway, the law is redundant; and if you have no reasons to do it, what reasons the law can create, and on what grounds?
All these are complicated questions and they need much further elaboration before we try to answer them. One of Joseph Raz’s main contributions to philosophy of law consists in his insight that we need to think about these questions about the normativity of law in terms of a general theory of practical authority. The law is, according to Raz, essentially authoritative in nature, and therefore the kind of reasons for action the law gives us must be considered in light of what practical authorities in general are, what would make an authority legitimate, and how authorities purport to change our reasons for action. I think that this main insight is a very important one and it certainly advanced the ways we think about law’s normativity.
Over the years I came to disagree with Raz on many of the details of his particular theory of practical authority, and some of the conclusions he draws from it. But I think we owe Raz a great deal both about the ways in which we think about the normativity of law, its connection to the nature of authority and about the ways in which we think about the nature of authority itself.
3:AM: This approach has been criticized as being a version of conceptual analysis. This approach hasn’t been an overwhelming success elsewhere, to say the least. So why do you think the approach has merit?
AM: As I explained above, this whole issue of conceptual analysis is a red herring. One of my recent articles in legal philosophy is entitled: “Farewell to Conceptual Analysis (in Jurisprudence)”. It is really time to put this anachronism to rest. Analytical legal philosophy is no more conceptual analysis than any other field in contemporary analytical philosophy and the methods it employs, whether linguistic or other, are really ill described as an analysis of concepts. The conceptual analysis that was central to Oxford philosophy in the 1950s may have influenced contemporary legal philosophy, as it did in other areas, but it is no longer the kind of philosophy we do.
3:AM: The role of interpretation in law is central to Dworkin’s approach. He thinks everything is open to interpretation. Your disagreement and your work on the role of interpretation in law is a key part of your work. So can you explain the role of interpretation in law so we can see that Dworkin’s view is untenable?
AM: As I mentioned earlier, I think that Dworkin has a lot of interesting and insightful things to say about the nature of interpretation and I happily endorse many of them. My main disagreement with Dworkin on this issue is about the ubiquity of interpretation. I just don’t think that it makes much sense to claim that everything is subject to interpretation, especially with respect to linguistic communication. “Everything is interpretation” is no more true or helpful than the idea that because you can, if you will, doubt anything, therefore everything is in doubt. Just about anything meaningful can become, in a certain context or under certain conditions, an object of interpretation. But this does not mean that we engage in some interpretative reasoning whenever we grasp a piece of linguistic communication. Interpretation, as I said earlier, aims to clarify something that is, in a given context, unclear or not sufficiently clear. But you can only seek to clarify something on the background of much else that is clear enough, at least in the relevant context.
3:AM: You discuss a broader idea of interpretation than one limited to law. You discuss interpretation in art. Can you say how you approach this and how interpretation in art differs from when used in law, and also say where there are overlaps?
AM: There are, indeed, many similarities between interpretation in art and interpretation in law. In both cases we seek to understand the content or the significance of a given object or text in light of some reasons or interests we have in the relevant type of objects/texts in question. The main difference, however, is this: works of art are created as objects of interpretation, they are created (partly) as an invitation to appreciate their aesthetic and artistic features, to appreciate the kinds of achievement they manifest, and the like.
Law, however, is not created to become an object of interpretation – law is created to guide human conduct; it has practical purposes. Making a law is not an invitation to the public to offer interpretations of it or to appreciate its legal qualities. Second, there is a clear sense in which art is an essentially contested concept. That is, the word “art” stands for a certain form of human achievement, an aspiration for excellence that is essentially contested, inviting different views about what kind of achievement it is and what its standards of excellence are. Each work of art contributes to this cultural debate, as it were, making an implicit statement about its conception of art, what the creator values in it, etc. And that is why the question of whether a given artifact is a work of art or not, and the question of what we value about art, are very closely linked.
Legality, however, is not an essentially contested concept. We do not regard legality as a form of human achievement, inviting, as it were, different conceptions of what makes it an achievement, what it is an achievement of and the standards of excellence we associate with it. The making of good law – morally, politically, economically or otherwise – is of course a form of achievement. We may have different conceptions of what would be a good law in this or that domain, but the relevant issue that is essentially contested here is not the legality of the lawmaking but the moral or other evaluative dimension of it – that is, the contested element here is the “good,” not the “law.”
3:AM: If interpretation is more limited in scope than some would have thought, then we might want to ask how we fix understandings without interpretation. Social conventions are often thought of as doing this. So you see social conventions as a species of norms, rules regulating human conduct, and also as arbitrary. You make a distinction between deep and surface conventions. Can youexplain this? You also distinguish between coordination conventions and constitutive conventions. The first position is associated with David Lewis I believe and you take issue with him don’t you? Can you say something about the basic approach you take to conventions and why they are important to practical reasoning? And how do you respond to criticism that your account slides between different levels of comparison – for example, between rues for chess and rules for following traffic regulation?
AM: Let me see if I can summarize the main ideas of a book-length project in a few sentences: there are countless social rules, of various kinds, we follow in our daily activities. These rules and social norms are there for reasons, there are reasons for following them. Now, some rules are basically determined by the reasons to have them. A rule to avoid humiliation or torture, or such, is the kind of rule whose content is determined by the reasons for having it. However, countless rules we follow are not like that: There are reasons for having them, but those reasons do not fully determine the content of the rule we follow. There are reasons, for example, to greet or otherwise acknowledge acquaintances when we meet them, but those reasons do not determine the actual content of the greeting conventions followed in different societies.
That is the sense in which a conventional norm is arbitrary: the content of the rule is under-determined by the reasons for having it. And then, part of the reason for following the rule depends on the fact that this is the rule that happens to be followed by others in the relevant community. So these are the kind of rules or norms I am interested in and that I think we by and large call social conventions.
Now, David Lewis had a rather ingenious idea about the nature of conventions and the rationale of following them: the idea was that these rules emerge as solutions to large-scale recurrent coordination problems. This would nicely explain why reasons for following conventions depend on general compliance, and it would also explain the sense in which conventions are under-determined by reasons. I think that Lewis is quite right about numerous cases, many social conventions have this coordinative rationale, including some aspects of language.
However, I argue in my work that there are many other cases, that there are many social conventions that cannot be explained in terms of the solution they offer to a pre-existing recurrent coordination problem. I call these constitutive conventions because, as I try to show, these are the kind of conventions that function as constitutive rules of a certain type of human activity, like playing chess or football, or forming distinct artistic genres, etc.
The distinction between deep and surface conventions is different matter, and a bit more complicated. The intuitive idea here is that there are some conventional practices where we do not follow the underlying conventional norms directly but by following more concrete and more shallow conventions that instantiate them. For example, there is an underlying conventional practice of showing respect for others in certain circumstances by one’s dressing up in certain ways; notice that other cultures might have different conventions here, say, showing respect by some outward appearance that is not a dress code but some other means. However, this deep convention of showing respect by a dress code in itself does not tell how to dress up for, say, a wedding or a funeral… the conventions we follow are the more concrete or specific local and shallow conventions of say, requiring men to wear a suit and tie to a wedding ceremony or such.
These two distinctions, however, between coordination and constitutive conventions, and between deep and shallow conventions, are quite distinct, they pick up different types of phenomena.
3:AM: When you look at conventions of language you disagree with those who say that language is hugely conventional. Presumably Wittgenstein is the parade case for this idea, but also Searle is in trouble if you are right. Can you say why you disagree with what for many has been taken to be an important fact about language that words in natural languages are conventional? Is this a version of Emma Borg’s semantic minimalism? And when you argue that borderline cases typically contain conventional variations of meaning is this the argument that vagueness is application of conventions to literal meaning?
AM: Truth to be told, I am not sure who is in trouble here, if anyone is. The question I deal with, that I think you refer to here, is whether the literal or lexical meaning of words in a natural language, the Fregean “sense” if you like, is conventional or not. This question is not central to semantics, by any means. In fact, very few philosophers of language even posed this question or considered it in any detail. And I am certainly not claiming that the conventionality of literal meaning is something that should become a central issue in semantics.
But it is an interesting question, nevertheless, and partly because it allows us to test our theory of conventions and see how it handles such problematic cases. Now, my argument that literal meaning is much less conventional than generally assumed rests on the rather simple idea that in most cases, though by no means all, there are reasons for having words designating certain things and those reasons pretty much determine what the word means.
In other words, my suggestion is simply this: if you agree that conventions are rules under-determined by reasons, you can easily come to see that the meaning of words in a natural language is not as conventional as one might have thought.
But notice that I am talking about meaning or sense, and not about the notation, or the sound-sense relations. Those are, no doubt, by and large conventional. The fact that in English the word “chair” stands for chairs, is of course, entirely conventional; other languages use a different sound to stand for the same word with the same literal meaning. But the fact that we have a word to designate these types of artifacts is not arbitrary in the relevant sense, and the reason for designating those artifacts by a certain word pretty much determine what the word means or stands for.
Now true, if this is correct, then one should have some doubts about some of Wittgenstein’s ideas, in particular, one should seriously doubt the ubiquity of family resemblance concepts. And I have expressed my doubts about family resemblance concepts in my book in some detail.
3:AM: I think you argue for a version of pragmatism, the view that meanings depend on conversational situations over and above the pure semantic properties of words. In normal conversation pragmatics help regulate the cooperative exchange of information, in law cooperation is exchanged by strategic interactions. Is this right? Can you say something about this?
AM: I don’t think that any philosopher of language these days would doubt the essential and ubiquitous role played by pragmatic factors in linguistic communication. My interests in the pragmatic aspects of communication in law pertain to some unique features of legal discourse, in particular, to the fact that communication in law, as in many other different contexts, is often very strategic in nature.
Strategic communication requires some modifications to the basic Gricean model in pragmatics, and this is partly what I aim to do. In this case, law is just an example, it is an example where we cannot simply rely on the Gricean model of conversational norms because it is just not the kind of conversation where parties aim at a cooperative exchange of information. I am not saying that Grice was wrong, just that we need to modify and extend his model to account for different types of conversation, and strategic conversation, of the kind we find in law, is one such central case.
3:AM: In your essay ‘Authority, Equality and Democracy’ you argue that fairness plays an essential role in the justification of democracy. Can you explain why you think this and what are the implications for democracies like the USA and UK where inequality and unfairness seem endemic. The protests of the Occupy movements and the Arab Spring and anti-Yeltsin protests in Russia all seem examples of people shouting that things are currently unfair. Is democracy in big trouble because of the fairness deficit that these movements identify all across the political landscape?
AM: Yes, I do think that fairness plays an essential role in the justification of democratic procedures. But first we need to get a better sense of why democracy calls for justification to begin with. Let’s take the core idea of a democratic decision procedure, namely, the idea that an important decision that affects numerous people is reached by a majority vote. It does not take more than a moment’s reflection to be puzzled by this: surely the fact that most people think that X is right does not make X right! So why cherish majoritarian decision procedures? What makes democracy so valuable?
There are two main lines of thought in response to this: some argue that the justification of democracy is, ultimately, a matter of instrumental value. Overall, democratic regimes just tend to generate better outcomes. We may have various explanations of why this is so, but the essential idea here is that there is nothing inherently more fair or just in a democratic decision procedure and the only thing that justifies democracies is the instrumental value they have, namely, the fact that they tend to generate better decisions, or better governance, at least in the long run.
The other line of thought is that in addition to whatever instrumental value democratic procedures may have, democracy is also valuable intrinsically: the idea here is that considerations of fairness ought to apply to the ways in which we make certain public decisions, and that democracy aims to instantiate those considerations of fairness.
Notice, however, that the fairness in play here is the fairness of the decision procedure, not the outcome. Nobody thinks that a fair decision procedure necessarily guarantees decisions that are fair or just.
So even if the second line of reasoning is correct (as I think that it is), and democracy is partly valuable because and in so far as it is a fair decision procedure, democratic decisions are not necessarily fair in their outcome. Fair procedures can easily result in unfair decisions or outcomes. And of course, this is what happens in my cases: democratic regimes end up with unjust laws or policies, not necessarily because the decision was not reached in a fair manner, but simply because a fair decision procedure is rarely a guarantee of a fair outcome.
3:AM: Some will argue that the Supreme Court itself seems as implicated in the lurch to unfairness as anything else. If the law itself is a force of anti-democracy then what hope is there? Are there any signs for optimism?
AM: I would not say that the law itself is a force of anti-democracy, though Constitutionalism is, to some extent, and purposefully so. The realization that fair procedures may result in very unjust decisions brings many to the conclusion that democracy needs to be limited, that there have to be counter-majoritarian elements in the system that would safeguard against the tyranny of the majority.
Surely this concern is not without merit and needs to be taken seriously. The system that American constitutionalism adopted is to have a written Constitution, entrenching certain rights and governmental principles, interpreted and implemented by the US Supreme court, exercising its power of judicial review, that is, the power to strike down laws it deems to be unconstitutional.
But this solution is problematic, of course, and some of us argue that US constitutionalism has taken the anti-majoritarian safeguards too far. We should keep in mind, however, that different legal systems have very different constitutional regimes, and the differences matter. My main concern about the US constitutional regime stems from the combination of a very rigid constitution (namely, one that is extremely difficult to amend), an almost unlimited power of judicial review entrusted with the supreme court (and not, for example, a separate constitutional court as in many other countries), and all this on the background of an increasingly polarized society.
So yes, I do have many concerns about the US constitutional model and I expressed those concerns in some of my writings. I find other constitutional regimes, mostly younger ones, such as the Canadian Charter or the EU constitutional regime, much less problematic. But of course, the US constitutional system is very entrenched and extremely difficult to change, so I don’t think that we are going to get an improved system anytime soon.
Is there reason for optimism? That, of course, very much depends on your reasons for pessimism. If you are disappointed by the results of our democratic decision procedures, then yes, there is reason for optimism. One of the most attractive features of a democratic regime is that the decisions of the majority today may not last all that long and those who are in the minority now may become the majority in the future. If your reasons for pessimism stem from deeper structural elements of the system then, of course, optimism is more difficult to entertain.
3:AM: So, apart from your own books which everyone will be dashing out to read, are there five books you could recommend to the readers here at 3am wanting to get further into these deep waters?
AM: How to answer such a question without offending some of my friends, I am really not sure….On the nature of law, I still think that H.L.A. Hart’s The Concept of Law is the most accessible and the most rewarding read, a bit outdated as it may be. Ronald Dworkin’s most comprehensive critique of Hart’s theory is in his Law’s Empire. On the nature of conventions, David Lewis’s Convention is the classical text and at least the first half of it is not particularly technical or difficult to read. On theories of democracy there are two books recently published, both of them excellent: Tom Christiano’s The Constitution of Equality and David Estlund’s Democratic Authority. I would add, if I may, that the recently published Routledge Companion to Philosophy of Law (that I edited) contains a very wide range of discussions on these and similar matters written for non-professional audience.
ABOUT THE INTERVIEWER
Richard Marshall is still biding his time.
First published in 3:AM Magazine: Friday, July 6th, 2012.