Ubiquitous Law

Legal Theory and the Space for Legal Pluralism

Emmanuel Melissaris

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317005704
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

Ubiquitous Law explores the possibility of understanding the law in dissociation from the State while, at the same time, establishing the conditions of meaningful communication between various legalities. This book argues that the enquiry into the legal has been biased by the implicit or explicit presupposition of the State's exclusivity to a claim to legality as well as the tendency to make the enquiry into the law the task of experts, who purport to be able to represent the legal community's commitments in an authoritative manner. Very worryingly, the experts' point of view then becomes constitutive of the law and parasitic to and distortive of people's commitments. Ubiquitous Law counter-suggests a new methodology for legal theory, which will not be based on rigid epistemological and normative assumptions but rather on self-reflection and mutual understanding and critique, so as to establish acceptable differences on the basis of a commonality.

1 Perspective, Critique and Pluralism in Legal Theory

DOI: 10.4324/9781315549460-1

Introduction

The task I set for myself in this book is, first, to show how mainstream legal theories rely on the association of the law with the State as a methodological and substantive presupposition and, secondly, to point towards a reconceptualization of the law as well as a rethinking of the research programme of legal theory. This new research programme will make the best of the pluralistic potential of both, as well as reconcile the philosophical with the social theoretical study of the legal. The aim of this first chapter is to highlight a methodological shortcoming of some of the most influential legal theories and show that there is a need for an alternative way of theorizing about the law. My main targets are conventionalist positivism, epitomized by the work of H.L.A. Hart, and Ronald Dworkin’s interpretivist substantivism, which have dominated legal philosophical debate over the past few decades, at least in the English-speaking world. I shall begin by arguing that the Hartian version of positivism cannot back both its twin claims to neutrality and generality at the same time, or at least not in the way that it goes about doing so. Dworkinian interpretivism may be better equipped for avoiding the same errors but, at the same time and because of its aversion towards conceptual analysis (at least of the positivistic kind), it wrongly rests on the presupposition that the institutional framework of law is of secondary significance but also given as a matter of general, albeit tacit, consensus. Thus not only does conceptual analysis (precisely of the positivistic kind) creep in theorizing about the law, but interpretivism also loses sight of its pluralistic and critical aims, which are purportedly central to it. Finally, although it is not my primary target, I will show that critical legal theory, in the broadest possible sense, is also found wanting because it is either not interested in questioning the exclusivity of State law, or at least a vision of the law as a one-way relationship of domination, or does not manage to criticize that with any conceptual clarity. In the next chapter I shall discuss whether theories of legal pluralism have managed to reclaim that pluralistic potential. The analysis here cannot but be rather cursory and selective, but I should emphasize that I am not interested in exposing all the methodological failures of all legal theories, but rather select some of the most influential ones¹ and bring to light their tacit, unjustified, and unexplained reliance on the assumption that the law is necessarily associated with the State.

1 I will make special mention of Hans Kelsen in Chapter 6.

Methodology in Legal Theory

Conventionalist Positivism

There is little doubt that contemporary legal theory owes much to and has been greatly influenced by the philosophy of H.L.A. Hart. Anxious to stick to his analytical guns and locate meaning in use and context, Hart argued that it is only through observation of how participants in the law speak and communicate about the latter that we can arrive at conclusions as to what the law is or, rather, what the law is held to be.² As is well known, a key distinction in Hart’s theory is that between the internal and the external points of view. The crux of his legal theory is the thesis that the theorist observes the practices of the participants in a legal system and then qualifies, systematizes and generalizes those practices so as to formulate a context-transcendent and axiologically neutral concept of law, which will reduce the latter to a set of other concepts of lower degree of complexity. So, presumably after observing prima facie legal practices, Hart came to the conclusion that the law consists in the combination of a set of primary and a set of secondary rules. Among those secondary rules, the rule of recognition occupies a central place, for it provides the criterion for the identification of rules qua legal.

2 I am conscious of the fact that positivists, including Hart, have vehemently denied the charge of semanticism. Their defences are not entirely convincing, not least because they have not yet told us what exactly their methodology is and to what extent they rely on (criterial) semantics, in order to ‘describe’ the law. However, this is not a debate I want to enter in this context. I simply take as uncontroversial that positivism offers a description of paradigmatic cases of law from the external point of view (see Endicott 2001; Stavropoulos 2001).

One problem with Hartian methodology that was quickly identified pertains to the nature of the external point of view. Hart suggested that the theorist observes, or ought to observe, from the external point of view what participants do and what meaning they attribute to their practices from the internal point of view. But if the external perspective is truly and fully external, the theorist will be unable to make any sense of participants’ practices. All she will be able to see, as Hart himself argues in the context of discussing John Austin’s idea of law-following as habit, are some regularities, which are either meaningless or meaningful with reference to the conceptual scheme of the observer rather than that of the participants. MacCormick came to the rescue by qualifying the distinction between internal and external. He addressed the fact that Hart failed to consider the possibility of understanding social behaviour through a process of Verstehen. Thus he distinguished between the hermeneutic and volitional aspects of the internal point of view. The former is assumed by the observer, the social scientist, who understands what participants in a legal system do but does not share their commitment (MacCormick 1981, 32–40).

This is admittedly a, perhaps unfairly, rough and brief reminder of the parameters of Hart’s social-scientific/philosophical methodology. Nevertheless, it already shows that the Hartian project can be understood in terms of a set of couplings and distinctions relating both to the perspective of the participants in a legal system and the theorist, who seeks to conceptualize the law by observing it in action. Hart’s positivism purports to be a neutral and, at the same time, general account of the structure of legal thought. But it also goes further than that by arguing that only such an uncommitted and universal account can be philosophically interesting. At the same time, Hart sends confusing signals as to how he goes about conceptualizing the law in such a neutral and general way. On the one hand, he claims to be offering a theory of law firmly embedded in the social by describing the book as an essay in descriptive sociology. On the other hand, and rather confusingly, he claims to be engaging in general conceptual analysis. This dual character strikes one as rather odd from the outset, as it seems impossible for conceptual analysis raising claims to universality and descriptive sociology to be reconciled in that way. All the more so, when we consider that they are coupled with the claims to generality and neutrality. In what follows I shall try to highlight some points of stress between all those claims.

Starting with description and generality, the problem is that the former cannot square with the latter, if the claim raised is an a priori one. Sociological description cannot help being both selective and context-bound. All a sociologist aiming at description can do is observe and record regularities, which she will have already picked out by employing a pre-selected concept, which will already have some content. This concept will serve as the criterion of inclusion (and exclusion) of the observed communities. In turn, observation will help clarify and refine the concept, which, though, has always already been guiding sociological enquiry. Thus a descriptive sociologist will be able to raise rather modest, context-bound and indexical claims. This, however, does not seem to have been Hart’s or other analytical positivists’ aim. The adage is that the only legal philosophical project worth pursuing is the effort to account for the concept of law in an a-historical, a priori manner. But it appears that this is not possible by way of description and then abstraction.

Seen from a different angle, in Hartian methodology the perspective of the participant seems to be conflated with that of the observer. In order to draw his image of law as the union of primary and secondary rules, Hart focuses on Western legal systems or, in any case, legal systems structurally resembling the one he was participating in as a former practising lawyer, and a teacher and researcher in legal academia. Perhaps it would be too much to expect Hart to sever his theorization entirely from his intellectual environment, which was marked by an adherence to ‘black letter law’, despite his hard efforts (Lacey 2004). After all, the discipline of law had not quite awoken from a 150-year-long lethargy (Duxbury 2005). The teaching of law was still vocational in orientation and focused exclusively on the systematic and largely uncritical study of statute and precedent (Lacey 2004). Or perhaps it would be unfair to ask Hart to provide anything other than ‘armchair sociology’ (Penner 2002, 442).

Irrespective of how much weight we place on historical and biographical explanations, Hart’s ‘sociological’ method cannot be defended theoretically. In assuming the external-hermeneutic point of view, Hart plays down the fact that he was a participant in a legal system and makes very little, if any, effort to address the difficulty and complexity of the project of assuming the external perspective. His analysis seems to be kicking off from the assumption of the universality of the form that the legal has taken in specific cultural and political contexts (Coyle 2002). His point of departure is thus necessarily a posteriori, as he seems to have already tacitly or unconsciously selected the cohort of legal systems which qualify as such, and then goes on to single out their commonalities and conceptualize the law in an abstract manner. Thus, first, his ‘descriptive sociology’ becomes very much prescriptive, to the extent that it forms the criteria of inclusion in the concept of law from an epistemic, third-person perspective, which is merged with the first-person point of view; secondly, it does not describe but one form of law rather than paradigmatic cases of the concept of law.³

3 This point is made very convincingly by Brian Tamanaha, who tries to disentangle conventionalism, functionalism and essentialism in Hartian jurisprudence, in order to formulate a project of positivist socio-legal theory (Tamanaha 2001). Tamanaha’s suggestions are extremely insightful and important, so more on them in Chapter 2.

MacCormick’s appeal to Verstehen, a suggestion which Hart accepted (Hart 1994, 243), does not provide a way out. The trouble is that Verstehen, especially if it is coupled with Hartian conventionalism, which MacCormick tried to refine rather than question, meets an insurmountable limitation. Namely, the observer, who assumes the standpoint of participants, can only learn what she already knows (Abel 1977). The hermeneutic attitude still maintains the distance between observer and observed and relies on the assumption that the states of the two parties are parallel, symmetrical and commensurable. For a Hartian legal sociologist to recognize legality when she sees it, she will have to refer to those paradigmatic cases in order to see whether the prima facie normative phenomena that she observes fall under the core meaning of law or they occupy some place in the conceptual penumbra. But this method is bound to leave out a number of phenomena, which, seen from a different perspective, could be of a legal nature.

Raz offers a rejoinder to this objection: ‘There is nothing wrong in interpreting the institutions of other societies in terms of our typologies. This is an inevitable part of any intelligent attempt to understand other cultures’ (Raz 1979, 50). This is indeed true and, in fact, it underpins some of my central arguments in this book. However, the problem with conventionalist positivist methodology is that the claims to generality and conclusiveness are raised too soon, when it is not even certain that they can be raised at all. As various theories of legal pluralism have pointed out, it is this philosophical imperialism, the delusion that our thick and conclusive concept of law can be imported into different contexts without losing any of its explanatory force and without doing injustice to these other contexts, that consolidates and lends legitimacy to State law perpetuating its domination. To be sure, one must start from somewhere and the best place to start from seems to be the familiar concepts available at home, but this is precisely that: a starting point and not ‘the final arbiter’ (J.L. Austin [1956] 1979, 8). First impressions must be put to further tests, which might even prove to be endless. The problem with Hartian positivism is that, although it is correct in trying to establish the possibility of saying something about the law in an a-contextual manner, not least because we seem to be referring to the legal as a distinct normative order rather consistently through time, it does not set the right conditions for the discourse through which this concept will be discovered and formulated. In order for an observer to be able to draw any conclusions as to what it is that a specific group of people has been ‘recognizing’ as law, she must engage with that community, in order to achieve a richer understanding of its normative commitments and, at the same time, enter a process of self-reflection about her own preconceptions of legality and instigate self-reflection on the part of that community as well. Moreover, Hartian legal theory does not seem aware of or allow any space for the falsifiability of its specific, context-bound conceptualization of the law, nor does it offer any way of gaining such awareness. And I would argue that central to the task of legal theory is precisely the awareness of its limitations and the effort to overcome them, seeking help from outside rather than barricading itself within its conceptual schemes. But I will have much more to say on these questions later on in this book.

The tension between description and generality is related to a second point of stress in Hartian methodology, namely the tension between conceptual analysis and neutrality.⁴ It is true that the most charitable reading of Hartian legal philosophy would treat it as an exercise in conceptual analysis rather than descriptive sociology, despite Hart’s confusing declarations. Hart’s aim seems to have been to observe how the concept of law is employed and then to engage in analysis, which would sharpen our awareness of the term, to allude to Hart’s Austinian influence, correct mistakes, deduct any contingencies and formulate a universal and context-transcendent concept of law. But can this ever be neutral? Can the recognition of the law qua law, that is as a source of normativity, ever be uncommitted?

4 In fact, what I have said about descriptiveness and generality holds for analysis as well.

Stephen Perry argues, correctly I think, that it cannot (Perry 2001). He distinguishes between Hart’s substantive and methodological positivism. The former consists in the separation and sources theses. The latter has to do with the nature of legal theory, which for Hart is uncommitted and external. But Hart also purports to explain legal normativity and obligation as conceptual parts of the law. And here is where Perry’s critique kicks in. It is impossible, he argues, to explain and clarify the concept of obligation from the external or hermeneutic point of view. Hart tells us that officials and other participants in a legal system regard themselves as obligated by the rules that the system consists in. He also famously refused to give an account of the reasons why participants experience this obligation. Perry argues that this does not sufficiently explain and clarify the concept of legal obligation. At the core of Hart’s analysis of obligation:

is simply a descriptive statement that (a certain proportion of) members of the relevant group regard themselves and all others in the group as obligated to conform to some general practice. This statement uses rather than analyses the concept of obligation. In the original text of The Concept of Law Hart in effect maintains that officials regard themselves and all other officials as obligated, in that unanalysed sense, by the general practice that constitutes the rule of recognition. To those who so regard themselves, this presumably does not come as news. If they or others want to know whether they are in fact under such an obligation, and if so shy, enlightenment is not forthcoming. Precisely because Hart’s account of obligation is descriptive and external, it cannot be said to have succeeded in clarifying or elucidating the concept in any significant way. (Perry 2001, 334–5)

Perry is right in pointing out that a robust legal theory must provide an account of what makes widespread acceptance of norms stemming from a particular source obligatory. The fact that people do accept the law as a source of rules capable of guiding their action (let alone widespread acceptance of the content of specific rules) is surely more than just a happy coincidence and calls for an explanation richer than the assumption that people, almost unreflectively, obey the law because everyone else does so or the circular argument that the sense of obligation is to be understood in terms of ...

Table of contents

• Cover Page
• Half Title Page
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Introduction
• 1 Perspective, Critique and Pluralism in Legal Theory
• 2 Orthodoxies and Heterodoxies of Legal Pluralism
• 3 On the Theoretical Groundwork of Legal Pluralism
• 4 Interperspectival, Critical Legal Theory
• 5 The Contours of Institutionalized Legal Discourse
• 6 Shared Normative Experiences and the Space for Legal Pluralism
• 7 On the Chronology (and Topology) of the Legal
• Conclusion
• Bibliography
• Index