Publishing, Copyright, Google

I'll start with a confession: I was wrong about the Google Books Project. And my wrongness is underscored by just how right Siva Vaidhyanathan--whose worries I dismissed at the time as contrarian library-fetishization--was. It's true that a happy ending could still emerge, but if it does, it's likely to be in spite of Google, and in the teeth of its opposition. My mistake is perhaps instructive, because it exemplifies some cognitive biases that bedevil all of us: wishful thinking, overvaluing the causal impact of character traits (and individual agency, generally) relative to structural tendencies, and an unfortunate tendency to take sides--if only affectively, subconsciously identifying one's own interests with those of one party or another--when powerful entities clash.

A quick summary for those who aren't obsessed with this stuff: Google partnered with some libraries to scan a zillion books, some public domain but most out-of-print but still in copyright (generally, stuff published after 1922), insisting that this was fair use (and thus legal) because copyright holders could opt-out, and only snippets would be shown of in-print books. Unsurprisingly, various authors' and publishers' rights organizations sued. I was hoping for a big, triumphant showdown: I thought that Google (and perhaps only Google), with its ridiculously deep pockets, its "Don't Be Evil" motto, and its justly-renowned lead copyright counsel William Patry, possessed the means, motive, and expertise to bring forth the 21st century's Betamax Case. A big win for Google would safeguard the Book Project, and that alone would be great, but I cared mainly about doctrine: a high profile victory for fair use (and the doctrinal emphasis on use rather than copying this would entail) would give legal protection to innovators everywhere.

Well, not so much. Google settled, and why wouldn't they? Google's mission is to make cool software and money, not to fix copyright law. The settlement places some minor constraints on the Book Project, true; I'm sure some engineers are annoyed. But that's a small price to pay for an effective legal monopoly over the world's digital library. Even if Google weren't one of the only companies with the cash to take a lawsuit like this to the Supreme Court, it's no longer possible for any of the others to win. Why? Because any potential competitor would find themselves caught by the circular reasoning of the Coursepack cases: if someone else (Google) is paying a license fee, it means there's a market for license fees, which means your use is a commercial one, which means your case for fair use is much weaker.

So, what now? I wish I knew. Some libraries seem to be fighting against this; we'll see if that comes to anything. I suspect we're at the point where only a statute will do; but Congress' record on copyright is terrible, and terribly predictable. Change, here, is just not something I can believe in: the inherent diffuse-benefits, concentrated-costs collective action logic will only be exacerbated by the inevitable cries of "Look out, socialism!" and "Respect international law!" that any attempt to scale back copyright is sure to provoke. I suppose that if Google gets a little too greedy in its pricing and access policies, the resulting backlash might scour away some bad law. But let's be honest: regulation as a quasi-public entity is at least twice as likely. Even the best (realistic) case, a statutory fee schedule, represents a massive and needless giveaway, and has insidious consolidation effects besides.

I blamed my optimism on human nature, but really, it's not like I wasn't warned. Here's what Bill Patry himself--the heroic knight in my imagined good-vs.-evil showdown--said in his farewell to the blogosphere:

Much like the U.S. economy, things are getting worse, not better. Copyright law has abandoned its reason for being: to encourage learning and the creation of new works. Instead, its principal functions now are to preserve existing failed business models, to suppress new business models and technologies, and to obtain, if possible, enormous windfall profits from activity that not only causes no harm, but which is beneficial to copyright owners. Like Humpty-Dumpty, the copyright law we used to know can never be put back together again: multilateral and trade agreements have ensured that, and quite deliberately.

Not dead yet!

Some general updates:

I can't imagine that anyone reading this isn't already following Jacob Levy's symposium on Nancy Rosenblum's new work on partisanship, but, if you do in fact fit the bill, please rectify that posthaste!

I'm going to be restarting my NYC libertarian-ish political theory-ish reading group. If you happen to come across this blog, are in the NYC area, are interested, and are not already someone I know personally, please contact me! I'm thinking we may start with Josiah Ober's new book on Athens, democracy, and knowledge. (Note to publishers: I don't care what it is about; if you get Philip Pettit, Jon Elster, and Russ Hardin to all blurb a book, I will buy it.)

March of Penguins turning into Trail of Tears. Sad! But click the link, if only to see the super-cute photo that goes with the article.

This is old news, but: Brooklyn's baby walrus now has bling!

Yes, there will be more posts to come on constitutionalism; at the moment, everything I read in the subject just makes me depressed. Sorry! Also: Brutum Fulmen may be guest-posting here soon, making BDFAR your #1 destination for pseudonymous general jurisprudence! Stay tuned.

Please consider submitting a comment to the Copyright Office in support of EFF's request for a cellphone-jailbreaking DMCA exemption.

More soon!

Booher's pragmatics

Huh. I drafted this post a year and a half ago, but just noticed yesterday that it was never "published." I suspect that I meant to get back to it and write more about how Prakash's arguments fail, but what I did write is free-standing enough that it might be of interest to jurisprudes.

---
[DRAFTED 8/2007]

The ongoing "debate" at Balkinization reminds me to briefly highlight a nice article I read recently, Troy Booher's "Putting Meaning in its Place: Originalism and the Philosophy of Language." It's essentially a demolition of Dworkin's claim to originalist bona fides, but as I never saw Dworkin's appropriation of the term as anything but a rhetorical flourish, I'm more concerned with the methods of the paper than with its conclusions.

The interesting part, I thought, was Booher's call for more attention to the pragmatics (vs. semantics) of constitutional interpretation. A number of theorists seem to be (implicitly or explicitly) relying on a philosophical toolkit that was designed precisely to abstract away from particular utterances in order to make sense of freestanding sentences. But the Constitution as a text is one particular "utterance"; and even if we decide that what matters is not its enactment at a particular time but its continuous reaffirmation, we're still in the realm of sentence (or clause, or Article, or Constitution) tokens rather than types. Booher, of course, sees this reformulation as merely clarifying what good originalists ought to be after when they delve into history: not merely semantic possibilities but pragmatic context, too. And exactly what sort of context is relevant depends on one's theory of what sorts of pragmatic moves are legitimate.

At first glance this just seems a fancy way of restating the obvious. Isn't this what Amar's intratextualism is all about, or Balkin's search for original principles, or Barnett's public meaning, or any approach that seeks to supplement "plain meaning" with historical inquiry? Well, yes. But Booher's way of framing the problem helps make clear just what's going on: we are using certain principles of inference--of how one ought to make sense of utterances in particular situations--to refine or go beyond "what was said". And we use the principles we do ... well, why?

This is where I think Booher's terminology shift helps: Pragmatic inference is, well, pragmatic. By looking at standard examples, we see that the rules depend on the *point* of the communicative situation. And once that is clear, we come back to my old hobbyhorse: why would we think the pragmatics of the constitutional situation would resemble, e.g., the statutory one? The latter are by no means uncontroversial, but it seems that arguments about them proceed in the way one would expect: by testing candidate principles against the authority relations established by the (conceptually prior) Constitution and showing that the principles make sense in that context. Debates about constitutional pragmatics, however, can't do this. If they appeal to structures of authority, they must do so either by resort to straight-up normative theory or by a more hermeneutic interpretation of "our practices." Sai Prakash's attempt to show that opposing originalism means being "against constitutionalism" (since only originalism can stay true to the idea, supposedly central to constitutionalism, of being bound by the past) is a nice example of how easy it is for the two strategies to blur; I'm not entirely clear which he's trying to use, frankly.

Trying to decide if they should / leave the things that keep them crying

A friend was asking me awhile back about the phenomenology of depression. She had difficulty understanding what it could be like, e.g., to feel so hopeless about one's existence that fleeing from consciousness (through sleep or psychotropics) seems the only feasible path, despite full awareness of how it only makes the next day worse. It's not something easily explained; the best I could do, really, was point her to this article in Rolling Stone about David Foster Wallace's struggle with depression and Wallace's own story "The Depressed Person."

It took me awhile to understand my own reactions to that story. When I first read it, years ago, I hated it--it inspired a rage in me usually reserved for news of contemporary politics or people being wrong on the Internet. A little too close to home, clearly; I couldn't distance myself enough to appreciate it. I didn't read it again until recently, when I heard Wallace had hanged himself; the news put the story in a rather different light.

Reading it a second time was still painful; I had to put it aside more than once. But what makes it so hard to read is precisely what makes it brilliant, at least in my mind: reading the story makes you hate the pseudonarrator as much as she hates herself, for the same reasons she hates herself. And as you come to despise her in just the way she feels she deserves, her pathetic and contemptible behavior becomes understandable--without thereby becoming any less contemptible.

Wallace explains her suffering by making the reader part of it--by making the reader simultaneously despise the depressed person, understand her to share that loathing, and yet hate her still more for inflicting her self-obsessed bathos on others (a hatred which she, of course, also shares): an unending spiral of contempt and self-aware, self-destructive action. It's a really neat trick.

Of course, this could simply be my own idiosyncratic reaction. I don't think of myself as a particularly sophisticated reader, and I've never taken any classes in literary interpretation. But it works for me, and it makes me appreciate the story quite a bit. Wallace certainly captures the tragic reflexivity of depression, the way it feeds off of self-awareness and the need to see oneself as a responsible agent, more vividly than my own bloodless philosophical musings are able to.

Dead, fat, or rich: nobody's left to bitch / about the goings-on in self-destructive zones

I'm back! To celebrate the occasion in an appropriately symbolic way, I present: sloths!

I'll love you in the morning / when you're still hungover

In the cold light of day, I can see the draft syllabus I posted yesterday has quite a lot of new stuff, and not very much in the way of classic articles / books. Too much, probably: one thing a student would completely miss from this syllabus is any serious engagement with the history of constitutional thought. There are a couple of reasons for that. The first is that I think, especially with graduate students and a broad topic like this, there's value in diving right into current controversies and contemporary statements of the issues. You lose some sense of the history, yes, but you also get up-to-date bibliographies and a better feel for how the problem is currently framed. Basically: it's not an history of political thought class, and if you want that thing, I'm not the guy for you.

But there's also a strong bias in the syllabus for on-line articles. Part of this can be defended on ideological/altruistic lines: I'm bothered by the course-pack licensing-fee racket. But it's more than that. As someone who is both lazy and only started getting into this stuff in the last, oh, five years or so, my own knowledge is heavily channeled towards on-line sources: journals my institution only has in print almost don't exist for me. This cuts the other way, too--though Solum's Legal Theory blog, I end up reading a lot of articles that would never get on my radar screen otherwise, including a number of bad ones.

Anyhow. It's a real issue.

Let this be my annual reminder / that we could all be something bigger

A hypothetical syllabus for a graduate seminar in constitutionalism (broadly construed). Assuming 14 weekly meetings of 2 hrs. Constructive criticism welcome. It feels very ... busy, but I think there's value in an overview of this sort. (Hence the reliance on survey articles, SEP stuff, and reviews.) I'd definitely like to make it less US-centric. So ... thoughts?

----

This class is on constitutionalism. It is not a class on constitutional law, and it is especially not a class on American constitutional law, although American voices will get disproportionate representation in the readings. While we will discuss the legal aspects of constitutionalism, one of the primary themes of the class is just how much more there is to the subject than can be found in the case law of constitutional courts. In addition to constitutions as “higher law,” then, we will be looking at constitutions as institutional settlements that simultaneously empower and limit the organs of the modern nation-state. We will also look at constitutionalism as an aspect of political identity, both for individuals and for states. Keeping these varied perspectives in mind, we will then tackle some of constitutionalism's most vexing problems: the mechanisms and legitimacy of constitutional change; the meaning and enforcement of constitutional rules; conflicts between constitutionalism and democracy; and the morality of constitutional constraint more generally.

In keeping with this pluralist agenda, the readings will draw from political science and philosophy as well as law. You will be required to write five short response papers (800-1000 words) and a research paper (6000-9000 words), and participate in class discussions. While I will prepare some introductory remarks each week to provide additional context for the readings and put my own spin on the material, the bulk of each class will be discussion format; the responses papers and class participation, therefore, count for half of your grade. Each response paper should engage with the current week's reading, although it may draw on previous material; so that we can all have a change to read that week's responses, they must be posted to Blackboard by noon on the previous day. You may pick which weeks to write on, although they must be selected in advance.

Session 1 – Introduction
Brief historical overview and introduction to the central problems of the course.

[38pp] Graham Maddox, “Constitution,” in Ball, Terence, James Farr, and Russell L. Hanson. 1988. Political Innovation and Conceptual Change. New York: Cambridge University Press.
[40pp] McIlwain, Charles Howard. 1947. Constitutionalism Ancient and Modern. Revised. Ithaca: Cornell Univ Press. Ch. 1, 2; at http://www.constitution.org/cmt/mcilw/mcilw.htm
[2pp] Selection from Paine, Thomas. 1998. Rights of Man, Common Sense, and Other Political Writings. Oxford University Press, USA.
[18pp] Waluchow, Wil, "Constitutionalism", The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), forthcoming URL = .

Optional: Gordon, Scott. 2002. Controlling the State: Constitutionalism from Ancient Athens to Today. Cambridge: Harvard University Press.

Session 2 – Foundations of legal theory
A whirlwind tour through the debates about the nature of law. What grounds the legality of particular laws or official acts?

[18pp] Green, Leslie, "Legal Positivism", The Stanford Encyclopedia of Philosophy (Spring 2003 Edition), Edward N. Zalta (ed.), URL = .
[21pp] Finnis, John, "Natural Law Theories", The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), forthcoming URL = .
[28pp] Postema, Gerald J. 1994. “Implicit Law.” Law and Philosophy 13(3):361-387.
[54pp] Shapiro, Scott J. 2007. “The 'Hart-Dworkin' Debate: A Short Guide for the Perplexed.” University of Michigan working paper, available at: http://ssrn.com/abstract=968657

Optional: [70pp] Hart, H. L. A. 1997. The Concept of Law. 2nd ed. New York: Oxford University Press. Especially ch. 5-7.
Optional: [25pp] Green, Leslie. 2005. “General Jurisprudence: A 25th Anniversary Essay.” Oxford J Legal Studies 25(4):565-580.
Optional: [75pp] Greenberg, Mark. No date. “The Standard Picture and its Discontents.” UCLA School of Law Research Paper No. 08-07. Available at: http://ssrn.com/paper=1103569 [Accessed March 21, 2008].


Session 3 – The constitution as law
What do constitutions look like from the perspective of law and legal philosophy?

[8pp] Perry, Michael J. 1998. “What is 'the Constitution'?” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part I only.
[25pp] Raz, Joseph. 1998. “On the Authority and Interpretation of Constitutions: Some Preliminaries.” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part I only.
[26pp] Alexander, Lawrence, and Frederick Schauer. 2008. “Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of Law on Acceptance.” In The Rule of Recognition and the U.S. Constitution, eds. Matthew Adler and Kenneth Himma. New York: Oxford University Press. Available at: http://ssrn.com/paper=1235202 .
[22pp] Adler, Matthew D. 2006. “Constitutional Fidelity, the Rule of Recognition, and the Communitarian Turn in Contemporary Positivism.” SSRN eLibrary. Available at: http://ssrn.com/paper=897988 .
[39pp] Dworkin, Ronald. 1997. Freedom's Law: The Moral Reading of the American Constitution. Cambridge: Harvard University Press. Introduction.
[15 pp] Lüth decision of the Federal Constitution Court of Germany, BVerfGE 7, 198.

Session 4 – The constitution as institution
What picture emerges if we focus on constitutions as defining the set of governmental institutions extant in a polity?

[40pp] Llewellyn, K. N. 1934. “The Constitution as an Institution.” Columbia Law Review 34:1.
[66pp] Young, Ernest. 2007. “The Constitution Outside the Constitution.” Yale Law Journal 117:408-473.
[56pp] Hansen, Mogens Herman. 1999. The Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology. Norman: University of Oklahoma Press. Ch. 4, 13.
[10pp] Extract from 2nd Certification Decision, Constitutional Court of S. Africa.
[23pp] Vile, M. J. C. 1998. Constitutionalism and the Separation of Powers. 2nd ed. Indianapolis: Liberty Fund. Ch. 1; ch. 2 is optional.
Extracts from the Constitution of South Africa.

Session 5 – Constitutions and identity
Can a constitution be understood without seeing it as somehow rooted in the society and the people who live under it? What role do constitutions have in shaping national identity?

[5 pp] Loughlin, Martin. 2005. “Constitutional Theory: A 25th Anniversary Essay.” Oxford J Legal Studies 25(2):183-202. Parts C and D.
[16pp] Habermas, Jürgen. 2003. “Toward a Cosmopolitan Europe.” Journal of Democracy 14(4):86-100.
[10pp] Extract from Burke, Edmund. 2002. Reflections on the Revolution in France. Stanford: Stanford University Press.
[37pp] Jacobsohn, Gary Jeffrey. 2006. “Constitutional Identity.” The Review of Politics 68(03):361-397.
[25pp] Barker, Ernest, and Ernest Barker. 1962. The Politics of Aristotle. New York: Oxford University Press. Book 3, esp. parts 3, 6-13.
Extracts from the Constitutions of Turkey, France, South Africa.

Session 6 – Enforcing the constitution: judicial solutions
Can courts guard the constitution? What are the conditions that make it possible?

[43pp] Holmes, Stephen. “Lineages of the Rules of Law,” in Przeworski, Adam, and José María Maravall. 2003. Democracy and the Rule of Law. New York: Cambridge University Press.
[25pp] Hilbink, L., T. Moustafa, and A. W. Pereira. 2007. “Courts and Judges in Authoritarian Regimes.” World Politics 60:122-45.
[5pp] Federalist 78. In Hamilton, Alexander et al. 2003. The Federalist Papers. New York: Signet Classics.
[26pp] Graber, Mark A. 2005. “Constructing Judicial Review.” Annual Review of Political Science 8:425-51.
[14pp] Whittington, Keith. 2005. “'Interpose Your Friendly Hand': Political Supports for the Exercise of Judicial Review by the United States Supreme Court.” American Political Science Review 99(04):583-596.

Session 7 – Enforcing the constitution: beyond judicial review
What other mechanisms besides courts can be used to enforce constitutional rules?

[12pp] Frey, Bruno S. 1997. “A Constitution for Knaves Crowds out Civic Virtues.” The Economic Journal 107(443):1043-1053.
[10pp] Federalist 47-51. In Hamilton, Alexander et al. 2003. The Federalist Papers. New York: Signet Classics.
[21pp] Smulovitz, Catalina. “How Can the Rule of Law Rule? Cost Imposition through
Decentralized Mechanisms” in id.
[46pp] Hansen, Mogens Herman. 1999. The Athenian Democracy in the Age of Demosthenes: Structure, Principles, and Ideology. Norman: University of Oklahoma Press. Ch. 8.

Session 8 – Constitutional change
How do constitutions change? How much change is good?

[19pp] Schauer, Frederick. 1995. “Amending the Presuppositions of a Constitution.” In Sanford Levinson, ed., Responding to Imperfection: the Theory and Practice of Constitutional Amendment. Princeton: Princeton University Press.
[24pp] Balkin, J. M., and R. B. Siegel. 2005. “Principles, Practices, and Social Movements.” University of Pennsylvania Law Review 154:927.
[45pp] Balkin, J. M., and Sanford Levinson. 2006. “The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State.” Fordham Law Review 75(2).
[32pp] Holmes, Stephen, and Cass R. Sunstein. 1995. “The Politics of Constitutional Revision in Eastern Europe.” In Sanford Levinson, ed., Responding to Imperfection: the Theory and Practice of Constitutional Amendment. Princeton: Princeton University Press.
[2pp] Extract from Burke, Edmund. 2002. Reflections on the Revolution in France. Stanford: Stanford University Press.
[27pp] Jacobsohn, Gary Jeffrey. 2006. “An unconstitutional constitution? A comparative perspective.” Int J Constitutional Law 4(3):460-487.

Optional: [26pp] Vernon Bogdanor. 2005. “Constitutional Reform in Britain: The Quiet Revolution.” Annual Review of Political Science 8:73-98.
Optional: [40pp] Kersch, Kenneth I. “How Conduct Became Speech and Speech Became Conduct: A Political Development Case Study in Labor Law and the Freedom of Speech.” Princeton Law and Public Affairs Working Paper No. 06-003. Available at: http://ssrn.com/paper=908322 .

Session 9 – Constitutionalism and democracy
[8pp] Habermas, Jürgen. 2003. “On Law and Disagreement. Some Comments on 'Interpretative Pluralism'.” Ratio Juris 16(2):187-194.
[43pp] Freeman. 1990. “Constitutional democracy and the legitimacy of judicial review.” Law and Philosophy 9(4):327-370.
[61pp] Waldron, J. 2006. “The Core of the Case Against Judicial Review.” Yale Law Journal 115.
[20pp] Devins, Neal. 2006. “The D'Oh! Of Popular Constitutionalism.” Michigan Law Review 105:1333.

Session 10 – Constitutional meaning
How can we figure out what the constitution means? Does the very existence of disagreement imply something about meaning?

[33pp] Paulsen, M. S. 2006. “How To Interpret the Constitution (and How Not To).” Yale Law Journal 115(2037).
[19pp] Perry, Michael J. 1998. “What is 'the Constitution'?” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part 2.
[20pp] Raz, Joseph. 1998. “On the Authority and Interpretation of Constitutions: Some Preliminaries.” In Constitutionalism: Philosophical Foundations, ed. Larry Alexander. New York: Cambridge University Press. Part 2.
[47pp] Scalia, Antonin. 1998. “Common-Law Courts in a Civil-Law System.” In A Matter of Interpretation: Federal Courts and the Law, ed. Amy Guttman. Princeton: Princeton University Press.
[51pp] Berman, Mitchell N. 2007. “Originalism is Bunk.” SSRN eLibrary. Available at: http://ssrn.com/paper=1078933 [Accessed August 22, 2008].

Optional: chapters on India, Germany, and Canada in Goldsworthy, Jeffrey. 2007. Interpreting Constitutions: A Comparative Study. New York: Oxford University Press.
Optional: Samaha, A. 2008. “Dead Hand Arguments and Constitutional Interpretation.” Columbia Law Review 108.

Session 11 – Constitutionalism and administrative discretion
From either an institutional/functional or aspirational perspective, much of what is considered “administrative rule-making” has a constitutional dimension. Can the vast discretion vested in most states' administrative agencies be squared with constitutional theory?

[21pp] Luban, David. 2002. “The Publicity of Law and the Regulatory State.” Journal of Political Philosophy 10(3):296-316.
[19pp] “Introduction,” in Dyzenhaus, D. 2004. The Unity of Public Law. Hart Publishing.
[22pp] Shapiro, Sidney A., and Richard W. Murphy. “Eight Things Americans Can't Figure Out About Controlling Administrative Power.” Administrative Law Review, Vol. 60, 2008. Available at: http://ssrn.com/paper=1162872 [Accessed August 8, 2008].
[41pp] Vermeule, Adrian. “Our Schmittian Administrative Law.” Harvard Law Review, 2009. Available at: http://ssrn.com/paper=1126726 [Accessed August 19, 2008].
Optional: [51pp] Dyzenhaus, David, and Evan Fox-Decent. 2001. “Rethinking the Process/Substance Distinction: Baker V. Canada.” The University of Toronto Law Journal, Vol. 51, No. 3, pp. 193-242. Available at: http://ssrn.com/paper=1090260 .
Optional: [67pp] Rubin, E. 2004. “The Myth of Accountability and the Anti-Administrative Impulse.” Michigan Law Review 103:2073.

Session 12 – Executive constraint and war
Is there something about war that makes it inapt for constitutional control, or any sort of rule-governance? Can emergency powers be constitutionalized? If so, should they be?

[30pp] Ferejohn, John, and Pasquale Pasquino. 2004. “The law of the exception: A typology of emergency powers.” Int J Constitutional Law 2(2):210-239.
[3pp] Elster, Jon. 2004. “Comments on the paper by Ferejohn and Pasquino.” Int J Constitutional Law 2(2):240-243.
[28pp] Dyzenhaus, David. 2004. “Intimations of legality amid the clash of arms.” Int J Constitutional Law 2(2):244-271.
[23pp] Coomaraswamy, Radhika, and Charmaine de los Reyes. 2004. “Rule by emergency: Sri Lanka's postcolonial constitutional experience.” Int J Constitutional Law 2(2):272-295.

Session 13 – Constitutional morality for officials
Should officials treat constitutional restraints as morally obligatory? If so, which ones? Can a conscientious official ever be a good person?

[18pp] Goldman, Alan H. 2006. “The Rationality of Complying with Rules: Paradox Resolved.” Ethics 116(3):453-470.
[21pp] Walzer, Michael. 1973. “Political Action: The Problem of Dirty Hands.” Philosophy and Public Affairs 2(2):160-180.
[17pp] Kleinerman, B. A. 2005. “Lincoln's Example: Executive Power and the Survival of Constitutionalism.” Perspectives on Politics 3(04):801-816.
[30pp] Extract from Graber, M. A. 2006. Dred Scott and the Problem of Constitutional Evil. New York: Cambridge University Press.
[52pp] Fox-Decent, Evan. 2005. “The Fiduciary Nature of State Legal Authority.” Queen's Law Journal, Vol. 31. Available at: http://ssrn.com/paper=1090292 [Accessed February 13, 2008].

Optional: [140pp] Barak, A. 2002. “A Judge on Judging: The Role of a Supreme Court in a Democracy.” Harvard Law Review 116:19.

Session 14 – Constitutional morality for citizens and subjects
What moral status should ordinary citizens accord constitutional rules and institutions? And to what extent do the answers to all these questions depend on whether the state properly encompasses the an appropriate group of people?

[16pp] Green, Leslie. "Legal Obligation and Authority", The Stanford Encyclopedia of Philosophy (Spring 2004 Edition), Edward N. Zalta (ed.), URL = .
[29pp] Waldron, Jeremy. 1993. “Special Ties and Natural Duties.” Philosophy and Public Affairs 22(1):3-30.
[15pp] Mandela, Nelson. Opening statement of the defense case in the Rivonia Trial, Pretoria Supreme Court, 20 April 1964. Available at http://www.anc.org.za/ancdocs/history/rivonia.html.
[30 pp] Trapnel, X. N.d. “Consequentialist Constitutional Duties.”
[36 pp] Nasstrom, Sofia. 2007. “The Legitimacy of the People.” Political Theory 35(5):624-658.

Optional: [44pp] Jones, Benjamin F., and Benjamin A. Olken. 2007. “Hit or Miss? The Effect of Assassinations on Institutions and War.” SSRN eLibrary. Available at: http://ssrn.com/paper=986952 [Accessed March 24, 2008].
Optional: [12pp] Thoreau, H.D. 2003. “Civil Disobedience,” in Thoreau, H. D. Walden and Civil Disobedience. Barnes & Noble Classics. Available at http://theinfovault.net/vault/documentsbillslegis_files/Duty%20of%20Civil%20Disobedience.pdf
Optional: [210pp] Edmundson, William A. 1998. Three Anarchical Fallacies: An Essay on Political Authority. New York: Cambridge University Press.

Calling me all the time / like Blondie ...

Okay, what? No. Just, no.

I'm the last to deny the value of art, literature, and cinema in enlarging our moral sensibilities, etc., etc., but look: the idea that one filmmaker's take on a man who transitions out of love and suffers for it is going to reveal a deep and universal truth about gender expression or identity is simply nuts.

The claim seems to be that this story (man falls for straight man, man becomes woman, man is still rejected by his beloved) is an example of the purported fact that our gender identity is primarily about gender presentation, and how we wish others to respond to this presentation. And I'd be a fool to deny that having others respond to one as an X is a big part of--a psychologically necessary component of, I'd say--identifying oneself as an X. But this just doesn't get Helen anywhere near what she wants (I'm assuming that What Helen Wants is to be warranted in saying "one ought not take up deviant gender identities; others are right to shame those who do; social institutions ought to discourage their creation, proliferation, and persistence").

I have to say, I'm not even sure I see where her argument is supposed to be going. It looks something like this:

1. The value in performing a certain gender role is in others' social validation of it, rather than in its congruence with your inner self;
2. And men want femmes;
3. And so does God, for that matter;
3. So strap on those stilettos, laydeez; that you prefer steel-toes is irrelevant.

Well, I would say that at least this makes more sense than the Underpants Gnomes' business plan, (Step 1: Collect underpants. Step 2: ? Step 3: Profit!) but I'm actually not sure about that. Remember that the whole dialectic (see here, here, and especially here) is Helen's attempt to give an internal critique of subversive gender roles--one that doesn't rely on their supposed Harm to Society (inevitably based on shoddy social science). So what she needs to show is that pursuing deviant gender identities is somehow self-defeating, and this she fails to do. After all, it is simply not the case that validation from social/sexual interaction is a monotonically decreasing function of distance-from-conventionality. Even if all we got out of gender performance was others' approval (or lack), many people would feel more validated by a subculture's acknowledgment of their genderqueerness than they would by 'passing' with the mainstream.

But Helen's mistake goes deeper than that. She seems to hate authenticity, so I'll avoid the term, but my preferred understanding of the philosophy of action makes me think that social recognition and acknowledgment matter as much as they do precisely because we need to maintain a sense of meaningful identity over time. That is, we need to understand our lives as narratives that matter, and this can't be done if we see ourselves as windowless monads acting out individualized scripts. The quest for personal identity (and even, gasp, authenticity) isn't in opposition to sociability, normative constraint, or tragic loss; it requires at least the possibility of all of these.

Helen's argument needs it to be true that subversive identities are doomed--that genderqueers will always fall in love with squares who can't deal, that transmen will inevitably find their sense of self disrupted by pregnancy, etc. But this is not merely bleak, it's wrong. Thomas Beatie seems to have no problem being a pregnant man; sometimes marriages continue when one partner transitions. Those few people willing to be openly gender-subversive typically derive not just pleasure but meaning from it, which is why, like the Christians in ancient Rome, they continue to do it despite persecution. About the only group for whom Helen's story seems remotely apt is the "ex-gay" movement, populated as it is with folks who found homosexuality incompatible with their religious beliefs, but anyone who takes the time to read through Disputed Mutability's archive (in comparison to, say, Eve's) must surely acknowledge the folly of prescribing that path for all.

Moreover, insofar as the tragedy with "ex-gays" derives from the difficulty with integrating deep aspects of sexual desire into a personal identity marked by precisely the traditionalist, religious norms Helen is trying to defend ... well, it looks a lot like her theory has a tragic narrative of its own: believing in it makes it true that one will experience the very moral dissonance and tragedy that the theory insists is inevitable. Well, no, thanks. Not when all it takes is reading, e.g., Sugarbutch to see just how much goodness and value--how much meaning--can be derived from what Helen would condemn as intrinsically deficient.

Look. It's true that gender identities are deeply entangled with sexual identities and preferences. What turns one on--what represents the beautiful, the sublime, the cute, and all the rest; what makes sex delicious or sacred or just fun--all of this has a lot to do with gender roles, with archetypes of social presentation (rather than just anatomy). And vice versa. So maybe this is what's driving Helen's about-face on butchness--if gender roles and sexual preferences are entangled, and we stop repressing deviant gender roles, might we arrive at her oft-ridiculed dystopia, that world where nobody knows who to fuck anymore?

Not so much. I've been ridiculing that dystopia for a reason; it's nuts. People would still need to find meaningful identities for themselves as sexual beings in a world with other sexual beings, and those identities would necessarily reflect extant traditions and practices, just as they do now. Even if sexual desires are quite socially relative, they're not particularly mutable for most individuals; even a society fully accepting of gender diversity would find that diversity anchored by both the need for social recognition and that relative immutability of desires. If anything, a flourshing of alternate gender identities would encourage everyone to be more thoughtful and conscientious about sexuality and gender. Helen fears a world of 12-year-old wallflowers, too bereft of shared understandings of sexual interaction to even get dates on Craigslist, but it's precisely our current, outmoded, ill-fitting gender dualism that leads to those wallflowers--and the 20- and 30- somethings that are their benighted future selves, the Nice Guys who can't get beyond the roles to see the people, and the all-too-common males who simply have no idea what they want out of sex or relationships because they've never had to think about it. (I'm sure there are equivalent female pathologies.)

So. Sure, most straight guys don't go for butch women. But substitute in "tomboy" or "Amazon" and suddenly "most" seems quite contestable; and Helen's corresponding assertion that there are no straight butches is just laughably wrong. Yes, sexual desire--both one's own and that of others--shapes gender identity and expression, and yes, most people throughout history have had tragically cramped understandings about all three (IBTP). But it's a blessing, not a curse, that economic, social, and technological shifts have increasingly provided space for gender and sexual deviance to flourish.

And once we see that flourishing for what it is, see those who reach for it as no more doomed or tragic (though certainly more vilified, and perhaps more self-conscious) than anyone else, then there's just nothing more to be said about arguments like Helen's. If you believe (straight) masculinity and femininity have value because of the way they enable flourishing through the constraints of tradition, if you're attracted to the metaphors of genre and poetic form, you should be on the front lines at the next Pride march.

If you want to argue God, of course, or make consequentialist arguments about social change--well, I don't think there's much to be said for those claims, either. But that's a different topic altogether.

We gotta stay positive!

I'd put off reading Mark Greenberg's "The Standard Picture and its Discontents" for an embarrassing reason: I suspected that I would find it extremely challenging and persuasive, and be forced to reorient my thinking about general jurisprudence as a result. And I was right. It is really, really good, and I think hits on exactly what I find frustrating with much of the general jurisprudence literature. I suspect, too, that a rejection of the "standard picture"--something like a command paradigm of law, where authoritative pronouncements directly explain the content of legal norms--may be at the root of my disagreement with constitutional originalism. (And an implicit acceptance of it may be why some of my interlocutors seem so dogmatic from my perspective--Solum's "Semantic Originalism," for example, seems entirely unmotivated from outside the SP.)

That's not to say that I agree with everything in the paper, which after all is merely a draft. I'm dubious about the direction he seems to be pushing his Dependence View in--I think any attempt to have law-on-morality dependence will need to take account of moral disagreement at the ground floor, as it were. But as a critique of the prevailing paradigm, it's nothing short of brilliant.

I found it curious that Greenberg doesn't mention Gerald Postema's work at all--having recently read a few of his papers, especially "Implicit Law," "Melody and Law's Mindfulness of Time," and "Law as Command," it strikes me that they're both hitting on the same point.

I'm kinda saving myself for the scene...

I really don't understand the argument Eve Tushnet is making here, prompted by an article in First Things claiming that Huckabee's mistake lay not in the substance of his arguments but his failure to give appropriately public reasons (and, more controversially, that Natural Law arguments would be sufficiently public). Is her view that natural law arguments presuppose evaluative standards which are just as contested (think justice, flourishing, common good, etc.) as the policy prescriptions the natural lawyers wish to arrive at? And that since we no longer share such standards ... well, what then? This is where I really can't follow Eve--it seems like she's saying we must replace them with evaluative-but-not-moral ones, such as aesthetic terms. And thus, we must be very, very afraid of mixed-sex college dorms, because they will make sex (both the fact of sexual difference, and the activity of intercourse) meaningless.

If this is the argument, then I think I disagree with her about everything except her acknowledgement of deep moral disagreement. And even here, I think she moves much too fast. What's important about disagreement is responding to it appropriately, which depends a lot on who disagrees and how much. Sometimes we have disagreement all the way down, but sometimes not. It really depends on the issue. Moreover, it's only through a thick public conversation about these normatively-loaded terms that we can create such shared meanings. Yes, some people are just talking past each other, but in the process of doing so, public meaning can take root. (And when we stop talking to each other as if it matters, public meaning dissolves.) There's certainly a difference between attempting to speak the language of public reasons versus not even trying, and the former can have valuable effects even when it's seemingly mistaken in its assumptions about consensus.

Second, I just can't see how aesthetic imperatives--or even the demands of practical reasoning, but this is because I'm an internalist about the latter through and through; let's put that aside here--can even come close to taking the place of moral discourse as a standard of public reason. At best, aesthetic response can function as an input in moral argument (in making claims about the value of environmental preservation, say); at worst, it reduces to Leon Kass's so-called "wisdom of repugnance." When it comes down to brass tacks, aesthetic responses are no more shared than moral ones, and--what is worse--are much less amenable to correction through argument and reflection. De gustibus, etc.--at least where politics is concerned. Public meaning--at least as far as law goes--is not merely fragile and contingent; it's also an achievement with real moral consequences. If it's really hopelessly lost, the answer is decentralization, subsidiarity, a liberal archipelago--not a Jurisprudence of Yuck.

Finally, one of the two examples she uses--the supposed banality of sex within any ideology that rejects traditionalist doctrines about its proper role--just rings false to me. I'm not saying that no one fits this diagnosis; the "pick-up artist" subculture described in Neil Strauss' "The Game," for example, seems full of unhappy men whose pathologically instrumentalist search for sex has made the prize no longer worth winning. But insisting that mixed-sex college dormrooms ought to be permitted is a far cry from committing to a training regimen explicitly designed to reduce all conversational interaction with women into a series of game-theoretic moves and counter-moves.

Recognizing that one can live harmoniously in a mixed-sex household doesn't mean desacralizing sexuality (for straights, obviously). If anything, it requires recognizing that sex isn't just about putting together parts that fit; if it were, mixed dorm rooms really would be a big distraction. Seeing women as people rather than as exotic Others is precisely what allows a man to escape the cramped misogyny of the "pick-up artist", and see sex as a joint exploration rather than as a prize. There are many ways for sex to be beautiful, but almost all require this reciprocal recognition of common humanity--a recognition that is blocked, rather than encouraged, by living arrangements (and other cultural practices) that keep men and women strangers in each others' eyes.

As embodied beings, we can never entirely break down the barriers that divide us. We can never merge with our loved ones in order to know them completely. And sometimes, sex is beautiful precisely because it is a concrete expression of that longing, an always-imperfect pursuit of an impossible unity. But trying to protect and encourage this beauty by further estrangement of the sexes is needlessly perverse: while seclusion and mystery may ignite a fiery lust, it cannot help but be the shallow obsession of the self-absorbed. Gourmands, oenophiles, lovers of music and dance and art in all its varieties--not only is the connoisseur's passion heightened and honed by knowledge and familiarity, but they are the only things that can ever bring it into being. The same goes for sexuality, and all the social interactions touched by it--ignorance, not knowledge, is what breeds banality.

I don't expect Eve to agree with this argument, at least in the context of sexuality; I know she takes Catholic doctrine here quite seriously. But I think those of us who aren't so bound, but who similarly value the aesthetic dimension of sexuality, should recognize that the gender rigidity and social repression of traditionalism represents its true enemy.

Constitutionalism and the Is-Ought distinction

Orin Kerr and Sasha Volokh have an interesting back-and-forth here about the is/ought distinction in constitutional law. Kerr claims that 'many people who discuss constitutional law are pretty sloppy in distinguishing "is" and "ought." When asked what the Constitution means, lots of people construct a pastiche of existing law and law that they personally would really like.' On his view, talking about constitutional law descriptively means "trying to describe what the law is in the same way [one] might describe the law to a client who needs to know the legal consequences of particular conduct."

Volokh points out that there are other ways of interpreting the constitutional "is" than this "bad man" view of law; we might believe that unenforced constitutional rules are still law despite a lack of institutional sanction, for example. Kerr thinks this is entirely consistent with his point: "My position was that by law I meant the doctrine of legal institutions -- courts, legislature, and executive, in whatever mixture." Or as he put it in his reply, law is "what legal institutions believe it they must do or not do using widely shared practices of interpretation."

But once Kerr has acknowledged this, his original claim--that many people are "sloppy" about is and ought, joining together what they want the law to be with what it actually is--starts looking a lot more questionable. Is Kerr's claim that normative arguments have no role to play in determining exactly how the actions of governmental branches create legal content? That they have no role to play in determining the limits of the relevant interpretive community?

One needn't be a Dworkinian to think that normative arguments are relevant to the content of constitutional norms; all but the hardest of hard positivists think so. And once you allow for this, then it is entirely reasonable for someone to challenge your description of a constitution's content on the grounds that it fails to properly reflect normative considerations.

Trying to be heroic in an age of modernity

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I know semantic externalism is a symptom, not a cause, but grrr ...

Depressing: that this post on the importance of seeing human experience in all its glorious particularity has already, by comment three, served as a pointed example of how doggedly we insist on processing all new information through a set of transparently inadequate categories.

That book sounds fascinating, though. Even if it isn't the Buffy-verse backstory I'd originally assumed.

Maximization and the supererogatory

Charles Johnson, in a thoughtful Comment to my last post, suggests that the demandingness objection to consequentialism is really about making conceptual room for the supererogatory. And I think that's probably right, but I'm still not convinced by it. I freely concede that maximization can't allow for supererogation at the fundamental level of moral ontology, but I actually see this as something of a feature, not a bug.

I think that supererogation is on a par with virtue and duty--a pervasive feature of a moral landscape that reflects, not a basic moral property, but the intersection of the unqualified (and maximizing) moral 'ought' with the limitations of the imperfect human frame. Virtues are character traits likely to reliably bring about the good; duties arise when maximization is itself a self-defeating approach to the good; and supererogation reflects a complicated mix of factors involving human sociability and fragility.

Our twin needs for self-respect and for the esteem of others--to be able to hold our heads up in public, to echo a concern of Pettit's--require us to differentiate the morally required from both the legally/institutionally required and from the morally desirable. These needs help us place sensible dividing lines between bad and forbidden, good and required; they help us translate this continuous line of valuations into something that can properly guide actions. We need to be able to see our lives as narratives with meaning, and we need to see and by seen by others as more than moral failures. But this no more goes against maximizing consequentialism than Bentham's acknowledgment that only certain bad acts merited legal sanction betrayed utilitarianism.

In short, supererogation has more to do with moral psychology than it does with moral ontology; and that is precisely why the example of Christ on the cross is misleading. As Johnson notes, supererogation makes no sense for an all-powerful, all-knowing being; but a theory like mine wouldn't expect it to.

That said, the original post was a bit of half-assed speculation about just why philosophers take the demandingness objection so seriously--and since Johnson's example suggests a Christian upbringing might encourage one to make room for the supererogatory as a foundational moral property, I suppose it tells against my suggestion.

Consequentialism and the demandingness objection

The demandingness objection against consequentialism--that, since it bases the right on maximizing the good, it demands perfection from moral agents--has never struck me as being all that problematic. Indeed, I'm rather puzzled that so many find it a reductio; what's so weird about the claim that you should always do better?

Wild speculation: perhaps there's some connection here with the prevalence of atheism among philosophers. After all, if you grow up taking Romans 3:23 seriously ("For all have sinned, and come short of the glory of God"), demandingness is exactly what one ought to expect from a moral theory. Hrmmm--are ex-Catholics more likely than others to be consequentialists?

Agency, akrasia, and Velleman

I've been reading a bit about practical rationality and reasons for action, and find David Velleman's theory quite interesting (see here, esp. chapter 3). But here's something curious: apparently both Velleman and I take it to be an advantage of his theory that it provides a plausible explanation for akrasia (weakness of will)--and yet we seem to have diametrically opposed beliefs about what exactly this explanation is.

Now, this probably just means that I've misunderstood his view, but, A, I find my interpretation independently interesting, and B, this is my blog, so there.

So. Briefly, Velleman's view of agency is that it consists in being guided by a motivation towards self-understanding, a motive that is constitutive of agency and hence inescapable. He likens it, persuasively, to a particular sort of improv: improvising the role of oneself, where a bad performance, an inauthentic performance, is one that fails to make sense. (Making sense is here cashed out in either a folk-psychologic or narrative sense.)

Now, he's not claiming that this motive dominates all others, merely that it exists and is an essential aspect of agency itself, and hence guides the formation and regulation of our other motivations. It plays the functional role of selfhood, basically.

How does this explain akrasia? Well, it seems like--at least in an earlier work--he sees the virtue of his explanation to lie in demonstrating the genuine agency of the akratic actor. He seems to be saying that akratic actions are those in which either the motive of self-understanding correctly overrides mistaken beliefs about what reasons there are, or the proper weighting of them, or correctly refrains from action, despite being aware of the right thing to do, because the awareness doesn't here constitute a full grasping of how the action fits into the agent's self-narrative.

My objection to this story, put simply, is that it makes akrasia sound okay. But it's not okay; it's awful--and if there's one thing I'm intimately familiar with, it's the phenomenology of akrasia. Under this reading, it seems like what's gone wrong isn't the "will" at all, which is doing fine; it's rather that the belief subsystem hasn't quite caught up to it. And this seems to utterly miss what's so disturbing about the phenomenon.

When I first read Ch. 3 of his manuscript, though, I felt it invited a dramatically different interpretation, one much more attuned to its tragic aspect. On this reading, is not that what the motive of self-understanding grasps has come apart from what the agent believes to be justified, or even to make the most sense. On the contrary--the problem is that the motive of self-understanding, while active, is simply too weak to enforce a coherent narrative. The akratic action may be undertaken while under the influence of that motive while remaining out of step with its demands. As a result the agent feels torn between his self-understanding as someone whose actions are under conscious control and his self-understanding as someone who doesn't do whatever it is he just, akratically, did.

On this interpretation, akrasia is worse that mere non-agency; it's an active subversion of agency, because it engages with the agent's self-understanding while undermining the narrative whose construction is its entire aim.

(I think a similar analysis helps illuminate one aspect of what's so awful about extreme depression.)

Thoughts on Hayekian liberty and democracy

Some scattered thoughts, while rereading The Constitution of Liberty:

I'm not very surprised by how close he is here to something like Pettit's republicanism. But I am surprised by the similarities between his view of law's generality and Rousseau's. (This is what comes of having a terrible memory, and even worse note-taking habits.)

Now, Hayek focuses on the formal (abstractness, generality) rather than procedural (mode of enactment) aspects of law ... mostly. But in his Chapter 10 discussion of law and coercion, he comes quite close to Rousseau's insistence on law's double generality. For Rousseau (Social Contract II.6), only norms that are willed by the people as a unified whole and applied to the people as a unified whole may be properly considered laws. Laws can have differentiated effects, and even establish separate groups of citizens, but only if the people wills it as a general, undifferentiated whole. This doesn't mean unanimity, but it does require an absence of faction.

So, too, with Hayek: "There may be rules that can apply only to women or to the blind," and this is inevitable, since "only a woman, for example, can be raped or got with child" (154). But what would keep laws touching on such matters from being arbitrary would be their status as "equally recognized as justified by those inside and those outside the group." As with Rousseau, this doesn't mean unanimity but rather a sort of anti-factionalism.

Hayek acknowledges this debt explicitly in a later section (194). But what I find interesting is that he doesn't do much with the procedural side of things; indeed, he's at pains to argue that liberalism has only a limited, instrumental connection to democracy (ch. 7). And in chapter 1, he insists that the "political freedom" of self-government is quite distinct from liberty proper, and represents the metaphorical extension of the latter concept to collectivities (a "free people," etc.).

But even the most expansive versions of political liberty (institutionalizing the equality of political power, let's say) are implicated in Hayek's anticoercion--this is what I take to be the moral of Rousseau's double generality. The negative argument is straightforward: if a new law is passed that only a minority recognizes as justified, each individual of the majority has reason to feel that it is thereby being made subject to another's arbitrary will, insofar as a 'minority rules' decision procedure implies some degree of differentiated status that falls afoul of the 'arbitrariness' criterion. Supermajoritarianism presents analogous, though less severe, difficulties. In the easiest case, the status quo bias implicit in supermajoritarian decision rules might be seen as benefitting a discrete set of persons and lasting only through their efforts, in which case it represents the enforcement of their arbitrary will. Even if this isn't true, however--even if opposition to the status quo takes the form of cross-cutting majoritarian coalitions--the individuals within those coalitions will have reason to feel that they are subject to the arbitrary will of the governing coalitions of the past.

Obviously no one can make a complaint on these grounds who simultaneously wishes to enact a law that would, by his own lights, count as furthering oppression. But as Jeremy Waldron insists, questions of authority go precisely to cases when we disagree about matters of justice and liberty; and the liberal who finds his anti-oppression law frustrated by supermajoritarian decision-rules has a legitimate complaint on procedure, not merely substance--a complaint his opponents should acknowledge as well-founded insofar as they too consider themselves liberals.

Best. Originalism. Article. Ever.

I'm sure you're all eager to hear my thoughts on Mitchell Berman's "Originalism Is Bunk" article. So here they are:

1. This is awesome. He gets everything right. Best. Originalism article. Ever.
2. Damn. Damn, damn, damn. So much for my writing the definitive refutation of conceptual originalism. Curse you, Mitchell Berman.

There's more to say, of course--Larry Solum has yet to concede defeat, so the fight must go on--but I really do think Berman has thoroughly refuted the extant "hard" originalist claims. To respond, originalists will need to articulate and defend an account of conceptual content sophisticated enough to deal with the fact the disagreement over the nature of constitutionalism and constitutional law extends all the way down when elaborated at any level of specificity. And this they have yet to do.

This, I think, has to be the next step. Perhaps pragmatic inferentialism will have a large part to play here; perhaps not. But, like Berman, I suspect "strong originalism" will lose its attractiveness as a interpretive theory.

More on Razian authority

Brian Leiter prefers that commenters refrain from pseudonymity, so I'll just continue this conversation here. I understand what Gardner and Green are saying, but if it's an accurate interpretation of Raz, it seems to be practically a reductio. To recap, my argument is as follows:

Imagine a legal system, SP, where the criteria of legal validity are: 1, only directives issued by official O are valid; 2, all those directives issued by O which do not conflict with moral considerations A and B are valid. Suppose O issues a directive, "Do X, and do not consider dependent reasons C, D, ... , J." This is clearly a soft positivist system. The question is whether such a system is possible. Gardner and Green claim that on a Razian account, it is not; such a system is incompatible with the conceptual truth that law claims authority.

I claim that, on the contrary, SP's law can easily claim authority. Obviously this claim may or may not be warranted, but, as Raz has been at pains to stress all along, this is not a problem; what Razians need to assert is the conceptual impossibility of SP. And not only is it possible, I believe that the legal system in SP is likely to have a stronger claim than one without such soft-positivist criteria.

Gardner claims that in my example "law-applying officials have no authority regarding the application of A and B. It is irrelevant that they have authority regarding lots of other things (such as C, D ... J)." But this seems to imply that to be an authority--to validly issue directives that can be taken as authoritative--one's directives must be taken as authoritative in all circumstances. Or as Green puts it, "if one assumes, with Raz, that it is necessary to the law that it claim authority, the law cannot include requirements, like A and B, concerning which the lawmaker plays no authoritative function."

To see why I feel this claim must be false, consider hard positivist "sources" criteria. The lawmaker, obviously, plays no authoritative function in deciding whether or not these criteria obtain; they either do or they do not. A bill was either passed in the proper way by the Queen in Parliament or it was not. Subjects must decide for themselves whether or not the directive issues from a valid Source before granting it authoritative status, and the officials might in fact be wrong; the Source-based criteria might fail in particular instances. Some directive might not in fact be encompassed by the authorizing legislation passed by the Queen in Parliament, despite the official's belief that it was (obviously there are complications, as the criteria may in a particular legal system have to do with the official's belief concerning ultra vires concerns rather than the fact of the matter, etc., but this can be put aside; we can imagine hard positivist criteria without such worries). In such a case, would we say, with Green, that "a[n] [executive official] issuing what he believes is a valid [legal] directive cannot consistently *claim* to be acting as an authority when issuing it, insofar as these requirements [ie, the Source-based criteria] are concerned"? No; the official will presumably believe that the criteria are satisfied, and hence be perfectly consistent in her claim (even if wrong). She is not acting as an authority on the question of whether or not the criteria are satisfied; she is acting under the authority conferred on her by the presumed satisfaction of those criteria.

This is exactly parallel to my official O in system SP consistently claiming that her directives are valid, even when she is wrong about A & B. If she is acting in good faith, she must obviously believe herself to be right about A & B; this is enough for her claim to be consistent. Just as the law can be wrong about its claim to authority--whether or not a directive ought in fact exclude and replace the dependent reasons underlying it--so too can officials be wrong about whether they have issued directives that pass the tests of validity within their systems. Are Raz, Green, and Gardner really denying this?

It might seem so. I'm having a bit of a hard time understanding Gardner's claim that "on the hard positivist view the directive must be interpreted so as to make the (legal) force of unexcluded reasons A and B turn on the law-applier's determination of their force." Is the claim is that whether or not the legal criteria of validity--even Source-based criteria--are satisfied turns on the official determination of this fact? Such an assertion seems truly odd, and does not flow at all from the self-image of the law as authoritative. It would seem to imply that officials can never be mistaken about applying the criteria of validity. But of course they can, just as different officials can disagree about whether or not they are satisfied. One official--an executive, say--might think he has valid authority; another--perhaps a judge--might disagree; perhaps a second set of judges will side with the first official. At each stage the officials will be trying to determine whether in fact the criteria of validity--whether Sources-based or otherwise--were satisfied (again, perhaps the judges will be looking at the different question of whether the official was justified in his possibly unauthorized action, but if so they are asking the slightly different question of whether the citizen had a legal duty to obey an invalid law in those circumstances, or a right to recover from the official's act, etc.).

Contra Gardner, soft posivitism does not efface the authority of a legal system's officials; what it does is narrow the scope of this authority. Hard positivist criteria of validity also narrow this scope. A legislature that can only pass bills with a 2/3 supermajority has "less" authority than one operating under simple majority. Same with one that can only legislate on Tuesdays. But this is no more incoherent or problematic than the idea that a doctor might have epistemic authority with respect to kidney diseases but not kidney diseases and brain tumors.

The point of the "partial exclusion" critique is that while the law needs to claim authority, it need only claim authority contingent on validity. Indeed, this contingency is precisely what separates a fully articulated legal system with criteria of legality applied by a cadre of officials from a simple personalist regime where Rex or Regina is an authority on everything. Just as an official can say "Do X" and claim authority because she believes that she is authorized to do so by a bill passed in the proper way (and she believes that moral considerations justify the subjects of her directive treating it as authoritative and hence excluding A, B, ... , J), so too can an official say "Do X" and claim authority because she believes she is authorized to do so by the existence of the bill plus the fact that the directive in fact complies with A & B (and moral considerations justify the subjects excluding C-J). In both cases the official can be wrong both about validity and about whether the authority is warranted, but so what?

Is the claim that inserting any moral considerations into the criteria of validity destroys the possible service value, because any sort of moral evaluation is categorically more difficult to apply than the Sources-based tests the hard positivists envision? This doesn't seem at all persuasive to me, but I won't bother trying to refute it. At any rate, it doesn't seem the natural interpretation of Raz; I had thought the point wasn't that moral considerations were distinctly harder to evaluate, but rather that authority would be undermined by trying to peek beneath and look to all its dependent reasons. Soft positivism doesn't do this. Even if A & B (let's say these are rule-of-law values) are among the dependent reasons that the authority will consider in making its judgment, O provides a service to her subjects by giving her directive in place of C-J. Is is not merely question-begging but mistaken to say that unless all dependent reasons are excluded, no useful service is provided by the exclusion of the rest.

Whether or not O in fact provides this service is an open, moral question, just as are all claims of authority. But I submit that O might actually have an easier time justifying this claim than she would if she were in a hard positivist system lacking the extra criteria of conformity with A & B. This flows from the general claim that it is easier to justify authorities of lesser rather than greater scope. Think about justifications for rule-of-law values: they often point to the ways in which the formal aspects of law (prospectivity, generality, due process) may increase conformity with other, more substantive, moral values. As a potentially vulnerable subject, I may think it reasonable to treat O as authoritative with respect to C-J only if I need not take her as authoritative with respect to rule-of-law considerations A and B. Her conformity with the latter allows me to believe that, in fact, I am better off letting her directive replace my own judgment concerning the rest.

I'm not saying this argument always goes through; I'm generally skeptical concerning legal authority. But soft positivism, by limiting (but not effacing) the law's authority, makes it easier to justify.

I'm really not sure what to add to this. If there's something I'm still missing about Gardner or Green's argument, I'd love to know what; I continued to be baffled by the acceptance of Raz's claim, and I'd be happy to be shown what I'm missing.

Grumpy before my time

Any article titled "An Economist Goes to a Bar And Solves the Mysteries of Dating" is pretty much guaranteed to annoy me. Now, again, the research here is rather interesting: they ran speed-dating experiments for two years and thus have a huge data set on 4-minute interactions between Columbia grad students, at the end of which each decides whether or not they'd be interested in a future date. Very cool. One might question how generalizable are conclusions derived from Columbia grad students (or from speed-dating), but still, neat.

My complaint is simply that the author is doing the world a disservice by implying ("all of this rational-choice stuff") that if you want to study this sort of thing, you should look to economics. This is social psychology pure and simple (and indeed, two of the coauthors were psychologists). Now, none of this would matter much ... except that the social ecology of knowledge-production really is sensitive to considerations like this. It's not good for Truth when economics is seen as the only "real" social science, and bright students go for econ PhDs regardless of the questions they intend to study or the methods best suited for studying them.

UPDATE: to clarify a bit--I don't have a problem with interdisciplinarity. Interdisciplinarity, done well, is great. What I have a problem with is when the general public comes to have a distorted view about what various disciplines are about. If you go to grad school for econ, you'll spend your first years with Mas-Colell, Whinston, and Green; it's not the most natural place for learning how to conduct field studies to gather data on social interactions.