Democracy, Law and Governance

Jacques Lenoble, Marc Maesschalck

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317153030
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Democracy, Law and Governance details the transformation of the modes of governance of contemporary developed democracies and aims to define the conditions required for promoting public interest in their public policy. Firstly, the volume illustrates why a sound theoretical approach to the concept of law results in opening up the theory of law to the debate on governance in the social sciences. Secondly, it reconstructs the underpinnings of recent debate on governance, focusing on the pragmatist turn that has marked efforts to overcome the inadequacies of both the economic and the deliberative approaches. In fulfilling this second goal, it examines the advances yielded by the pragmatist turn as well as its limitations, and concludes by proposing a theoretical approach for dealing with them. This illuminating book applies recent research in both theory of law and theory of governance to deepen the analytic impact of the recent pragmatist revival.

PART I1
Beyond Hermeneutic and Pragmatist Approaches: Toward a Genetic Approach to the Concept of Law

Introduction

Philosophical inquiry, J. Coleman2 recently observed, is an exercise that develops austerely and modestly, like a variation on a familiar theme rather than like the chimerical construction, often too prized today, of a new system for its own sake. But this does not prevent advances and shifts. To pursue the musical metaphor, the quality of the variations becomes evident when, on the basis of a familiar theme, they open up to stimulating and even sometimes destabilizing interpretations3 and thereby reveal an unknown face of the seemingly over-familiar.

Of course, this observation also applies to philosophical inquiry into law. In fact, it may even take on broader significance here. A brief look at the history of philosophy of law during the last century seems indeed to attest that those “variations” that are generally considered to have been truly “inspired” are the work of authors who have been especially aware of the necessity to learn, not only from the history of their own discipline, but also from a discussion conducted in the background: the meta-theoretical discussion of epistemological inquiry.4

There are many indications that a favourable moment is approaching for the emergence of such a new variation. It would be linked mainly to the debate prompted by the revisiting of traditional issues in legal theory in the light of the recent pragmatist5 revival in epistemology.6

One of its most representative and fully developed expressions is J. Coleman’s project of “pragmatic conceptualism”7 and his proposal for what might be called a pragmatist turn in the philosophy of law. We will therefore take it as the starting point for our own reflections. Of course, this proposal for a pragmatist turn is not without predecessors. The interpretivist or hermeneutic turn that governs numerous recent studies in philosophy of law itself reflects the will to respect a form of epistemological internalism which anticipates the project for a pragmatist approach to legal theory. Similarly, beyond the sphere of philosophy of law, the anti-foundationalist trend which has characterized a significant part of American legal scholarship since the 1960s anticipates the pragmatist turn, although in a still more implicit and less developed way. Certain features specific to the pragmatist turn, however, augur the fruitfulness of this approach.

First, the project for a pragmatist turn (and more broadly the movement of which it is a privileged expression) has introduced a salutary clarification to current debate in legal theory. Thanks to a patient rereading of current findings in positivist research on law (and of certain elements of the background to these findings that help in gauging their import),8 it has been possible to reinterpret the theoretical significance of the theses in question and thus assess the issue at stake in several current debates. As we shall see, it allows in particular for an understanding of why the interpretivist or hermeneutic turn in philosophy of law, and more generally the central place assigned to the judge in current inquiry into law, do not yield the critical exposure of legal positivism that their supporters still too often continue to credit them with.

However, this first feature reflects a second, deeper one. Of course, simply listening attentively to the lessons of the past helps place the purported advances of much current inquiry into law in perspective. It does not suffice, however. The advance made by the pragmatist turn consists mainly of its reformulation of the lessons of the past (and the questions underlying them) in the light of a meta-theoretical, that is, epistemological, inquiry. As the term indicates, the pragmatist project, by deploying the theoretical clarity of recent epistemological discussion in analytic philosophy, leads to the restoration9 of an essential link between legal theory and a theory of judgement. Elucidating the concept of law comes down to understanding the practice by which a social group produces shared normative meaning. Such understanding necessarily presupposes a degree of understanding of the process by which meaning is produced in (social) reality. This is the issue at the heart of any theory of judgement: it aims to inquire into the conditions for possibility of the operation (that is, the action, the practice) by which judgement produces meaning effects.10 In reconstructing the conditions for the process of implementing (that is, the process of applying) a judgement, epistemological reflection provides a necessary and privileged means of revealing the conditions for possibility of the practice by which a social group produces and recognizes a normative authority, that is, a means of revealing the conditions for the possibility of governance by law. The pragmatist turn, advanced mainly by J. Coleman in philosophy of law, leads to the elaboration of the discussion surrounding these presuppositions and to its analysis in the light of critiques of mentalism (associated in particular with the work of W. Quine and H. Putnam) that embody the main trends in current epistemological thought.11

It is the explicit insistence on this epistemological requirement that accounts for the fruitfulness of the pragmatist turn proposed by Coleman. Certainly, as already indicated, for some time now many authors had been revisiting the traditional questions of inquiry into law in the light of the instruments developed by the philosophy of language, W. Quine’s and L. Wittgenstein’s12 holistic approaches included. The internalist approach R. Dworkin has attempted to develop on the basis of his hermeneutic perspective is one revealing example.

But, as will be seen below with regard to R. Dworkin, the advance inherent in the pragmatist turn as proposed by J. Coleman is due to the effects associated with the explicit invocation of epistemological arguments. This explicit invocation not only makes it possible to reformulate the fundamental question of theory of law as the question of the conditions for emergence of a given social practice (be it interpretive or other) of adherence to a shared normative meaning. It also reveals the twofold conceptual weakness of current theories of law. First, the weakness of hermeneutic theories,13 which, though they seek to expose the inconsistencies of positivist theories with regard to a holistic approach to meaning, are themselves incapable of making explicit the requirements of such an approach and respecting them. Second, the parallel weakness of current representations of legal positivism,14 which, in spite of their accurate insight into the need for a conventionalist approach to law, remain incapable of adequately inferring all the conditions for emergence of such an approach.

This is where the central issue in our own inquiry emerges. While highlighting the significant gains made by the process that the pragmatist turn has launched in theory of law, we nevertheless wish to extend it in the name of the epistemological requirement that this turn is working to enact. In relying on the especially highly developed version of the pragmatist turn that J. Coleman has provided us with, we shall seek to apply to it the movement that H. Putnam (1988: xii), in the figurative terms he uses to explain his analysis of the limitations of cognitivist theories, has described as “the trick attributed to adepts in jiu-jitsu of turning an opponent’s strength against himself”. In other words, we wish to show how J. Coleman’s explicitly epistemological project contains within itself requirements that make it necessary to deepen and indeed modify his proposed pragmatist reformulation of current theses in legal positivism. These modifications relate to the way that the conditions for possibility of the conventional social practice by which a group produces and recognizes normative authority must be understood. We will show how a non-mentalist approach to the operation of judgement entails extending the requirement of what H. Hart has called “the internal point of view” specific to this practice of recognition beyond the officials responsible for applying the rules (that is, mainly the judges). Our hypothesis is that an exact understanding of these requirements of the epistemological holism called for by the pragmatist turn entails revisiting a presupposition shared by the positivist and hermeneutical approaches, namely the conception of the operation of the production of normative authority mainly through the operation of judges’ production of law.

We will specify below the exact content of these modifications and its twofold consequences: first, an epistemological consequence that reveals the normative meaning of the concept of technical law; and second, a consequence related to the need for the theory of law to reconnect with political philosophy and open up to the current debate in the social sciences about the question of governance.15 The latter consequence is also implicitly introduced by the pragmatist turn, although inadequately. This is the case not so much because J. Coleman and B. Zipursky have used as their point of departure for their reflection a confrontation with the “law and economics” approach; nor is it because S. Shapiro and J. Coleman borrow explicitly from theories of action whose significance in current reflection in social science is well known. Rather, it is the case because from the very heart of the pragmatist reformulation of H. Hart’s rule of recognition there emerges the notion that an adequate understanding of the conditions for possibility of the form of cooperative activity by which law is produced results in an inclusion of the need for specific institutional mechanisms. The opening up of the concept of law to the neo-institutionalist reflection at the heart of current debate in the social sciences is, however, only sketched out. It does not result in a revisiting of the usual postulate in current approaches in philosophy of law, consisting of “inoculating” analysis of the concept of law against other analyses pursued by theory of governance (or political philosophy).

Our hypothesis, in contrast, is that an inoculation of this kind must be critiqued for epistemological reasons. Under this same head, we will present our idea of the “normative dimension” that any complete approach to the concept of law must include. Let us here present a brief overview of our argument. It covers four points:

(1) As will be seen in detail below, an in-depth analysis of the social practice by which citizens express their respect for the decisions made by the authorities responsible for issuing and applying legal norms requires that the way the positivists describe this practice be specified and redefined. As we know, the positivists are satisfied to refer to this practice as a simple, objectively observable fact that manifests on its own the overall efficacy of a legal system.16

We will show that every general and customary habit of obedience is definitely the result of a shared judgement by which citizens make this obedience depend on the expectation that the public authorities will satisfy their (the citizens’) normative expectations to the extent possible. This practice thus presupposes a form of shared intention, that is, the shared adoption and acceptance of a form of life in common assumed to be able to respond to its members’ expectations to the extent possible.

(2) A redefinition along these lines does not just constitute a more fine-tuned description. If that were all, the advance made would be of little interest. On the contrary, such a redefinition brings with it significant theoretical and practical consequences. Before proceeding to sketch them out, however, we must first highlight an initial advance yielded by this redefinition. This is the fact that this redefinition results from the outset in reformulations of two positivist theses (as well, as will be seen below, as hermeneutic theses).

The first reformulation relates to the matter of the question. As has already been mentioned, the analysis of the concept of law is usually considered to aim at an understanding of the conditions for possibility of the social practice by which a group produces and recognizes normative authority. The redefinition we have given above helps show how this question can be reformulated in “teleological” terms. Recognition of normative authority includes a dimension of “end purpose”, a “teleological” dimension. The ability of a legal system to act authoritatively, that is, to ensure its “regulatory” capability, flows from its ability to “meet the normative expectations of the social community”. Put another way, recognition of a legal system’s normative authority must be analysed as the result of an operation of “teleological” judgement. On such an operation of “teleological” judgement depends law’s “potential for social governance”, that is, its “social destination”, its ability to meet the normative expectations of its addressees. Accordingly, the question of the conditions for possibility of a social practice of recognition of normative authority can be formulated as that of a pragmatic (operating) frame capable of inferring the ability of the normative system to meet its beneficiaries’ normative expectations.

The second reformulation relates to the distinction made by theory of law between two categories of addressees concerned by the application of a norm. On one hand, there are the public authorities (often referred to as “officials”) in charge of applying norms. On the other hand, there are the citizen-addressees responsible for adjusting their behaviour (and thus their normative expectations) to what is prescribed by the norms imposed by the authorities. As we will show in fuller detail below, the positivists often express this distinction in H. Hart’s terms, those of a difference between an “internal” and “external” point of view. The internal point of view is that of the public authorities, who, when they apply the norm, respect it themselves, because they recognize its validity, that is, its obligatory nature as “a model and a reason for action”. By the same token, the existence of a legal system within a social group does not (according to the positivists) require the “internal point of view”, which is demanded of the authorities responsible for applying the law, to be manifested among citizens. It is sufficient for citizens’ behaviour to reflect a customary and general practice of obedience to the law (that is, the adoption of a simple “external point of view”).17 A better analysis of the form of judgement that governs this general practice of obedience results, contrary to this view, in expanding the requirement for what H. Hart calls the “internal point of view” specific to the practice of recognition beyond the public authorities responsible for applying the rules.

(3) But how does this dual reformulation help in understanding the deeper consequence of such a redefinition of the type of behaviour required of citizens so that the internal teleology of any legal system can be fulfilled? The consequence in question is that this invalidates the positivist assumption that it is sufficient to refer to citizens’ general practice of obedience to assume that the condition for citizens’ acceptance, which is one of the two conditions that guarantees a legal system’s ability to ensure its regulatory role, has been fulfilled. Why so? First, because this shows that the judgement that justifies this general practice of obedience is a judgement of the “maximization of normative expectations”. But above all, because, if the analysis of this operation of judgement—which, in current theory of law, remains a black box—is not opened up, this general practice of obedience is postulated to reflect the rational outcome of the operation of judgement. And it is because of this postulate that it is assumed the public authorities have only to rely on the fact of the customary and general practice of obedience to their decisions to be assured that citizens accept their (the public authorities’) normative authority and that citizens’ normative expectations will adjust to any new decisions the authorities decide to impose. Once a social system appears to have been stabilized through a general practice of obedience,18 the judgement that officials would have to exercise regarding citizens’ acceptance of their authority can be analysed as a “postulate”.19 It would suffice to assert by a simple formal rule of judgement that what is observable does indeed correspond to a general form of behaviour necessary to live within a given legal system. Thus, this postulate is assumed to be rationally acceptable solely based on an observable fact and is considered to be able to be determined, as regards the authorities, by a simple formal rule of judgement (in this instance, the axiomatic generalization of the observable behaviour deemed to be adequate). But such an assumption is invalid in two ways.

First, if on the contrary one observes that this practice—and therefore this acceptance by citizens—is an activity of judgement exercised through an intention, an end purpose (the effort to fulfil normative expectations), the preceding line of argument is tenable only if such an intention, such an end purpose, is also “formally able to be determined”. It is necessary, in effect, to assume that the meaning of this “intention”, that is, the condition for its fulfilment, must be formalizable, that is, able to be determined independent of its context of use. As will be seen, this is an assumption in which the pragmatist turn has already enabled us to detect epistemological inconsistency, because it entails mentalism. An intention cannot be identified with a rule stored in the mind. That is why, indeed, we argue that the pragmatist turn that philosophy of law has recently taken will only achieve its full impact if we revisit a distinction that the pragmatist approach to the concept of law unluckily wishes...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Contents
• List of Tables
• Introduction
• PART I BEYOND HERMENEUTIC AND PRAGMATIST APPROACHES: TOWARD A GENETIC APPROACH TO THE CONCEPT OF LAW
• PART II BEYOND NEO-INSTITUTIONALIST AND PRAGMATIST APPROACHES TO GOVERNANCE: TOWARD A GENETIC APPROACH TO GOVERNANCE
• Conclusion
• List of References
• Index