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Frederick Schauer : THE SOCIAL CONSTRUCTION OF THE CONCEPT OF LAW: A REPLY TO JULIE DICKSON(2) |
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3. On Reconstructing the Socially Constructed
So what are we to make of the concept of law being socially constructed, and thus of the contingency and not the necessity of the relationship between legality and morality, whatever that relationship may be. [16] Dickson, I suspect, would acknowledge the contingency and thus the variability, in theory, of our concept of law, but would then proceed to say that to inquire now into how the concept of law could have been constructed is, at this stage of the game, too counterfactual to be interesting, and should be relegated, in her words, to 'novelists and utopian schemers'. [17] Our culture might have constructed its concept of law in any of numerous ways, she appears to argue, but the important question for analytic jurisprudence is not what our culture might have done but what it did do. [18] Our concept of law has been with us for millennia, she can be understood as continuing, and for millennia our concept of law has also shared characteristics with other cultures and their concepts of law. Whatever options may have been open millennia ago, it is too late in the day to go back to the beginning. The jurisprudential task, she says, is to describe and to explain the concept of law that our culture, in the large, has actually adopted, and not to develop or promote whatever concept of law our or some other culture might have or should have adopted instead.
Such a view of the exclusive task of analytic jurisprudence, however, presupposes an unrealistically static view of the social construction of the concept of law. Law is not only unlike anchovies, but it is also unlike the Tower Bridge. For although the Tower Bridge is a human construction and not a natural kind, its reconstruction, while theoretically possible, is empirically remote. And because reconstruction or even substantial modification of the Tower Bridge is today so unlikely, it makes perfect sense to engage in the task of attempting to describe and explain the Tower Bridge as it now exists, and not as it might have existed, and not even as it might now be reconstructed.
Unlike the socially constructed Tower Bridge, however, the socially constructed concept of law changes over time, and is best understood as emerging through a process of continuous construction and reconstruction. Just as we cannot identify the exact moment at which some culture's construction of the concept of law was started, nor can we identify the point at which the construction of the concept of law was completed. Although there was (presumably) a moment at which the construction of Tower Bridge was declared completed and its cornerstone laid, this is not so with our concept of law, which resembles Neurath's continuously constructed and reconstructed boat far more than it resembles the time-bound construction of the Tower Bridge. Because concepts are liable to change, and may change over time, it would be a mistake to assume that the concept of law must always be what it now is. Given that it has changed in the past, it would be remarkable to suppose that it would not change in the future. Indeed, to the extent that different cultures have different concepts of law, [19] then a culture not only has some control over a change in its concept of law, but presumably has the capacity to shift its concept of law, however slowly, to resemble the concept of law existing elsewhere.
The fact that the concept of law is being continuously constructed and reconstructed does not mean that it is impossible to take a snapshot of where it is right now, and Dickson's repeated references to describing the concept of law as it 'actually exists' [20] suggests that she adopts such a snapshot approach to freezing an image of a continuously moving entity. Yet although taking such snapshots is undeniably important, it is a more difficult case to make that it is the only important enterprise, or even the only important jurisprudential enterprise, or even the only important analytic jurisprudential enterprise. It is certainly plausible, for example, to suppose that it might be useful not only to describe the concept of law, but also to prescribe it, and thus to offer reasons and arguments for why a culture should steer and shape, however slowly and however collectively, its concept of law in this direction rather than that. [21] Indeed, when we consider such events as the Second World War, the Holocaust, the Nuremburg trials, the use of law as a progressive social force in the United States during the period of the Warren Court, the transformation of legal systems in the communist world from 1989 to the present, the creation of new legal systems in post-colonial societies, and the effect on law of the information and technological revolution of the last two decades, among many others, it is not unreasonable to conclude that not only law but also our concept of law itself is at a particularly fluid period in the concept's history, and that this fluidity has characterized our culture's concept of law for roughly the past 70 years. Under such circumstances, the suggestion that there might be room to move the concept in one direction rather than another, and thus to modify our culture's understanding of how it conceived the very enterprise of law, seems less fanciful than it might have at other times, and thus potentially an enterprise too important to be left to the novelists and utopian schemers. At this time in the history of our concept of law, at seems slightly less implausible than it might have at other times to understand the role that prescription might play as a part, although certainly not all of, the analytic jurisprudential endeavour. To engage in prescriptive conceptual analysis, therefore, as I did in the work that Dickson attacks, and as Hart did in 1958, is to believe that explicitly normative theorizing about what it would be good for our concept of law to be is somewhat less fanciful than normative speculation of how it would be good for the Tower Bridge to have been constructed.
Let me emphasize that I am not claiming that every (or even any) significant change in the substance or institutions of the law is evidence of a change in our concept of law. Law and its institutions may change in substantial ways while the concept of law remains the same. But what we have seen over much of the 20th century is change not only in the substance and the institutions of law, but also in how we imagine just what law is, what it does, and how it relates to other social institutions. All of this is plausibly understood as conceptual change and not just legal change, and it is this conceptual change in the concept of law itself that suggests that further change is not so fanciful as to lie exclusively within the province of utopian schemers and novelists. And if just this conceptual change is not only possible but occurrent, then it is far from implausible to imagine the concept changing in one way rather than another. To the extent that conceptual change remains plausible, therefore, it is open to consider the possible directions of that conceptual change, and to consider as well, as both Hart and Fuller did in 1958 and as I do now, the possibility that some of these changes may have more to recommend them than others. And it follows from this that the prescriptive voice in analytical jurisprudence is not one that fails to understand the idea of a concept of law, but rather is one that, having understood the idea, believes there is a place for recommending what our concept of law should be or should become.
4. The Multiple Voices of Legal Theory
If it is right that conceptual prescription is a plausible jurisprudential task, then it turns out that Dickson's error lies largely in assuming, admittedly assisted by less clarification than I now realize would have been desirable, that she and I are engaged in the identical enterprise. We are not, and although her concern is the valuable one of describing and explaining the concept of law as it now exists, my concern, at least in the work that Dickson attacks, and Hart's, in 1958, is in part with prescribing what the concept of law ought to be. And although it is hubris to suppose that my or anyone else's prescriptions can alone shift in even the smallest way the very shape and direction of such a venerable and deeply entrenched institution and concept, much the same could be said about virtually all normative moral, political, and legal philosophy. Just as much of normative or prescriptive moral and political philosophy speaks in the voice of urging how it would be good for people or governments to behave, so too does at least some of normative legal philosophy speak in the voice not of what our concept of law now is, but of urging how it would be good for our concept of law to be designed or redesigned.
I speak of the 'voice' of normative moral, political, and legal philosophy in part to bracket difficult empirical questions about how normative or prescriptive theory might actually bring about change, whether substantive or conceptual. One possibility, of course, is that such prescriptive theory is, as an empirical matter, almost certainly pointless with respect to substance and even more so with respect to concepts. And thus the reference to a widespread voice for prescriptive theory is only to suggest that difficult empirical questions about the extent and mechanisms of the relationship between academic prescription and genuine change might be asked not only about prescribing change in our concept of law but also about a much larger domain of prescription. Another possibility, however, is that individual prescription exists as part of a collective enterprise in which some prescriptions, initially individual, become sufficiently widespread and take on sufficient authority that they might indeed effectuate real change. When Hart in 1958 urged that the particular concept of law be accepted, he can best be understood as hoping that if enough other theorists agreed with him then this collective agreement might eventually pass on to a larger collection of students, practitioners, and perhaps eventually to the public. Conceptual change is slow, incremental, and uncertain, and studying its mechanisms is for social scientists and not for legal theorists. But once we recognize that conceptual change is, in theory, no less possible than substantive change or institutional change, we can recognize as well that prescribing change in the concept of law is not different in kind from a large number of other prescriptive enterprises.
All of this suggests that Dickson and I may not have a deep disagreement about the concept of law, but only a shallow disagreement about the tasks of analytic jurisprudence. [22] I do not deny that one crucially important task of jurisprudence is that of describing and explaining the concept of law, and nothing I say here should be understood as denying either the possibility or the value of that enterprise. [23] But another task of jurisprudence is unashamedly normative, prescribing not what law should be but what the concept of law should be. And it should be plain that to engage in that enterprise is to set upon a task in which consideration of beneficial moral consequences is at least highly relevant and arguably unavoidable. It would indeed be a mistake to take such consequences to be germane to a descriptive enterprise, but it would be no less a mistake to take them to be non-germane to a prescriptive enterprise. At bottom, therefore, Dickson errs in assuming that my enterprise is her enterprise. Mine, at least at times, and as was Hart's in 1958, is explicitly conceptually prescriptive, and for that enterprise the consideration of the beneficial moral consequences of having this or that concept of law is not only possible, but arguably essential.
Frederick Schauer: Frank Stanton Professor of the First Amendment, John F. Kennedy School of Government, Harvard University. I am grateful for the written comments of Brian Bix and Joseph Raz, and for useful discussion with Liam Murphy.
[16]. On the contingency of the concept of law and what might flow from that contingency, see Brian H. Bix, 'Raz on Necessity', Law and Philosophy, vol 22 (2003) 537-59.
[17]. Dickson at p 90.
[18]. It appears to be common ground that when we are talking about the concept of law we are in fact talking about our concept of law. See Bix, above n 16 at 546-49, Jules L. Coleman 'Incorporationism, Conventionalism, and the Practical Difference Thesis', Legal Theory, vol 4 (1998) 381-425 at 393; Joseph Raz, 'Can There Be a Theory of Law?' in Martin Golding and William Edmundson (eds), Blackwell Guide to the Philosophy of Law and Legal Theory (Oxford: Basil Blackwell, 2005), 324-42.
[19]. As Joseph Raz argues in 'Can There Be a Theory of Law?' above n 18 at 331.
[20]. E.g. pp 42-43, 89.
[21]. The argument I make here in some respects takes on more than may be necessary. If the concept of law is essentially and deeply contested, then prescription (or taking a normative position, which is not exactly the same thing, but close) may necessarily be part of the process of description and explanation, as is argued in Liam Murphy, above n 9. See also Stephen R. Perry, 'Hart's Methodological Positivism' in Jules Coleman (ed.), Hart's Postscript: Essays on the Postscript to the Concept of Law (Oxford: Oxford University Press, 2001), 313-54; Stephen R. Perry, 'The Varieties of Legal Positivism', Canadian Journal of Law and Jurisprudence, vol 9 (1996) 361-81. And see the discussion in Brian Bix's Book Review of Dickson's book, at Australian Journal of Legal Philosophy, vol 28 (2003) 231-36. I do not (necessarily) disagree with either Murphy or Perry on this point, but I want to make the further argument that prescriptive conceptual jurisprudence may be worthwhile even if the concept of law is not deeply contested, and thus even if description without prescription is possible. If I am correct, then Murphy and Perry are, a fortiori, also correct, and in that sense my argument is independent of the ontological question of whether the concept of law is or is not deeply contested, containing no non-contested core capable of description. To put the same point differently, Murphy claims that prescription is necessary because non-prescriptive description (of the concept of law) is impossible, and Perry's claims about the normative dimensions of explanatory jurisprudence are similar, but I claim that prescription is often useful even if non-prescriptive and non-normative description is indeed possible.
[22]. Insofar as Dickson's contrast between analytic jurisprudence and 'novelists and utopian schemers,' p 90, suggests that she takes 'analytic' and 'prescriptive' to be mutually exclusive, then our disagreements may be deeper. But I will give her the benefit of the doubt, and so assume that she does not deny that analytic tools, methods, and approaches might be valuable even in a normative or prescriptive enterprise.
[23]. But nor should I be taken here as necessarily agreeing that such prescription-free explanation is even possible. Murphy may well be right that it is impossible, but my argument here presupposes its possibility.
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