Duncan Kennedy presents a deep critique of
contemporary legal thought which he summarizes as a "death of
reason critique."
1 His key claims are
that normative inferencing--central to the formalization of
legal thinking in conceptual jurisprudence (
Begriffsjurisprudenz)
2--has
proved itself at best problematic, at worst impossible, and
that the hope that conceptual jurisprudence would close all
legal gaps (lacunes) and solve each paradox and problem of the
law was misplaced;
3 further, Kennedy
notes that rather than enjoying foreseeable justice based on
law, we live within an ad hoc system which often fails to
identify and implement substantive justice.
4
I
heartily agree with Kennedy here: the legal system often fails
to work substantive justice. However, rather than presenting
an abstract theoretical critique of why the system
cannot
work, as Kennedy does
5 (and it often
cannot--just
look at the issue of torture
6 to see what I mean,
or go directly to the death penalty for a plain example of
injustice),
7 I try to present
concrete, material propositions of where and how the system
could
work--
if it wanted to. I do so to empower other
critical jurists. I also do so because U.S. global hegemony is
not unbeatable. An alternative to kill-for-oil federal
imperialism in the name of freedom-to-torture
could
exist. Rather than creating abstractions which may be taken up
by a supreme court in a hundred years, I try to provide judges
the tools necessary to make decisions today that reach the
right results.
A key characteristic of contemporary legal
thought is "rights discourse." What is "rights discourse"? A
discursive practice
8 is a dialog (not a
resolution) between different viewpoints. Rights discourse,
then, is the practice by various contending theorists of
determining or imposing some vision of "rights." I argue that
most rights discourse is unpersuasive, due to unscientific
conceptual apparatuses and mythological counterfactual views
of reality. The term "right," like the term "law," is
polysemic
9 and ambiguous, and
the two terms often overlap. As a consequence of these
realities, most rights discourse is doomed to incoherence and
failure. Though most rights discourse is doomed to futility
and irrelevance, that is
not due to a fatal flaw in
the idea of the rule of law or the idea that logic is
inevitably indeterminate.
10 Indeed, a
dialectics of rights is
possible.
11 Legal science can
and should extirpate ambiguity, polysemicity, and confusion
from rights discourse so as to compel a dialectical resolution
of the conflicts over what is right and what rights are.
The most famous--and in my opinion, one of
the failed-- contemporary views of rights discourse is
propounded by Ronald Dworkin. Dworkin tries to describe
"principles"
12 as "rights"
13
and to distinguish them from "policies."
14
When lawyers
reason or dispute about legal rights and obligations,
particularly in those hard cases when our problems with
these concepts seem most acute, they make use of standards
that do not function as rules, but operate differently as
principles, policies and other sorts of standards.
... I just spoke
of "principles policies, and other sorts of standards." Most
often I shall use the term "principle" generically, to refer
to the whole set of these standards other than rules;
occasionally, however, I shall be more precise, and
distinguish between
principles and policies .... I call a "policy" that kind of
standard that sets out a goal to be reached, generally an
improvement in some economic, political, or social feature
of the community .... I call a "principle" a standard that
is to be observed, not because it will advance or secure an
economic, political, or social situation deemed desirable,
but because it is a requirement of justice or fairness or
some other dimension of morality .... The distinction can be
collapsed by construing a principle as stating a social
goal (emphasis added) ... or by construing a policy as
stating a principle ... or by adopting the utilitarian
thesis that principles of justice are disguised statements
of goals .... In some contexts the distinction has uses
which are lost if it is thus collapsed. 15
Dworkin thus argues that principles,
policies, and other sorts of standards operate differently
than rules, and reaches the conclusion that principles are
privileged compared with other rules.
16
He doesn't say
how policies or principles (which are
in fact meta-rules - rules for establishing other rules)
logically differ from other rules. In fact, they don't. All
rules are conditionals in the form of "
if ... then."
Meta-rules tell us how to choose and apply other rules. That
is their only ontological difference from other rules, as far
as I can see. I think Dworkin may be trying to differentiate
the "rights" and "principles" of conceptual jurisprudence from
the "standards" and "goals" of legal process interest
balancing. If so, the distinction is ill put, as policies and
principles alike are teleological ends which the law seeks to
fulfill.
Dworkin may also be trying to make a
distinction between "legal rights" and "collective (political)
goals." He writes:
Arguments of policy
justify a political decision by showing that the decision
advances or protects some collective goal of the community as
a whole .... Arguments of principle justify a political
decision by
showing
that the decision respects or secures some individual or group
right.
17
However, a problem lies therein--Dworkin
hasn't adequately defined his basic terms, i.e., rights,
principles, policies, goals, and standards. A good typology
might distinguish among "rights" on the basis of whether they
are individual or collective, or whether they are "procedural"
"negative" "freedoms from ..." rather than "affirmative"
"rights to ..." For example, prohibitions against gender and
racial discrimination are
collective rights. Yet they
are also "merely" procedural guarantees.
Dworkin fails to make these distinctions.
Instead, he attempts to distinguish "principles" and "rights"
from "policies."
18 He seems to be
trying to confront whether rights are individual or
collective, positive or natural. However his treatment of that
is necessarily underdeveloped since he doesn't present a
detailed typology of rights, distinguishing only between
"principles," "rights," and "policies." His distinctions
between "principles," "rights," and "policies" might be
defensible if he were to argue that "rights" are individual,
natural, and/or substantive, whereas "policies" are
collective, positive, and procedural. But it seems he doesn't
consciously make such distinctions.
In any event such a typology would be open
to critique because it is only somewhat accurate. Political
rights, such as the right to vote and the right to free speech
are "merely" procedural rights. Yet they doubtless would be
perceived by Dworkin as hierarchically superior to other
rights. Likewise, prohibitions against racial discrimination
or gender discrimination are collective and also show that the
substantive/procedural distinction doesn't always hold water.
Again, Dworkin would likely argue that laws prohibiting sex
discrimination and race discrimination--which are
collective
claims--are laws that protect "rights."
Dworkin even admits his distinctions are
not final because he recognizes the existence of collective
rights ("principles"). In fact his typology is incomplete and
cannot succeed in its own natural law terms because Dworkin,
like most of the rest of late modernity, doesn't see the
complementary character of natural
law and positive law. Some laws are
natural and universal, inevitable. Others are positive,
variable, and dependent upon society. "Rights" could be
adequately distinguished thereby as "natural" or "positive"
and then further distinguished on the basis of whether they
are individual or collective, whether they are "procedural"
"negative" "freedoms from" or "affirmative" "rights to."
Dworkin doesn't reach these distinctions, and his theory as
presented is untenable due to lack of adequate basic
definition.
Dworkin also tries to distinguish justice,
fairness, and morality from other goals which are also good -
which leads to further confusion in his theory by introducing
more undefined basic terms. What is justice? Dworkin doesn't
seem to define it, at least as far as I have read. Plato and
Aristotle already had radically different ideas about what
"justice" and the "just" are. Though, you can always add
Thomas Moore or Karl Marx to see how deep and contested this
human desire to the good is - so deep that the idea of
"justice" is quite contested: "justice" is polysemic. Dworkin,
so far as I have read him, does not appear to define his basic
terms even by reference--he
seems to be a
Kantean-Lockean liberal, minus the social contract. Dworkin
also appears oblivious to the fact that moral theory since
about 1880 has been hotly contested and transforming. A
thought experiment shows how much society has changed. If you
took a time traveler from 1800 and put them in today's society
of: Legal prostitution here, gay marriage there, abortion just
about everywhere, and premarital sex, they would be shocked,
to say nothing of the complete pornification of the west via
internet--and by the way, no one much goes to church anymore.
We're not in Kansas anymore. Dworkin believes in the moral. So
do I. However we might have different ideas about what
morality is. He doesn't seem to have defined what he means by
morality.
So, I think Dworkin is remarkably
unsuccessful at proving his positions (1) that there is a
fundamental difference between "rights" and "policies," and
(2) that "rights" do--or should--"trump" policies. However,
even if wrong and basically flawed, Dworkin's ideas were
surprisingly resonant for a time because he basically argued
from the presumption that the system was legitimate. Just like
the poor desperately
need basic rights just to
survive--survival rights-- the rich and powerful likewise
need
to believe that they
deserve luxury even in the midst
of famine and war. Who can blame them?
There are no evil
people. However, there are destructive and unhealthy
actions
(there are also
healthy,
constructive actions). All those "evil" people think they are
doing what is right, natural, or good; that they are
justified; that they are making the best choices possible; or
even that they haven't any other choice!
You would
not do any differently if you were in their shoes.
Their dysfunctional (self-)destructive behaviors are the
result of a lack of awareness that better alternatives even
exist (I don't have to be abusive just to survive?), and/or
the inability to see themselves in those better alternatives
(I could live in a nice house instead of a being homeless?),
and/or that they do not know how they could properly obtain
the better alternatives (If I dress nicely people will like me
and even help me find a decent job?). So, the real battle
against injustice is to make others aware of their other,
better, opportunities.
I regard Dworkin's views on rights as
unpersuasive and untenable. His moral theory and his theory of
justice are underdeveloped. His basic terms are not well
defined. Dworkin's work is often criticized.
19
While he admits these weaknesses,
20 the problems with
his work--undeveloped theories of justice and morality due to
terminological ambiguity and enthymematic
liberal/individualist presumptions--remain. These flaws are
why I see his thought as much more limited than it need be.
In sum, because Dworkin does not seek out
the origins and significations of his basic terms in legal
history and practice, he cannot (and does not) adequately
define them. The result is confusion. While tenable
distinctions between "principles," "rights," and "policies"
could
be made by recognizing the complementary character of positive
law versus natural justice, and then distinguishing between
substance and procedure, between and individual and
collective, Dworkin does not do so. Dworkin does not prove
that his "principles," whatever they may be, are "objective."
How could he? He failed to adequately define "principle" in
the first place. The failure also results in his inability to
prove that "principles" "trump" "policies," or that they
should. Instead, Dworkin fixates on tautology: "principles"
are somehow outside of politics and somehow superior to
policy. But he doesn't explain
how any of that is so
or
why. Nor does he explain how to distinguish a
"policy" from a "principle" or why "principles"
should trump
"policies"; apparently, he presumes we all share his liberal
individualist rights centric world view. I don't. I'm not an
individualist. I am probably authoritarian not liberal. I am
certainly instrumentalist about rights: "
rights" are an
effective and convenient way to organize and subdue
conflict. That's it.
Like most of the rest of late modernity,
Dworkin didn't understand that
positive law and natural
justice are complementary, not dichotomous. So, while
Dworkin doesn't prove his thesis, and at times errs, the
categories he tries to use ("rights," "policies," and
"principles") can be coerced into something useful by way of a
more rigorous methodology. If we see natural rights and
positive law as complementary, derive a well defined typology
of rights from legal practice, and apply that typology to his
work, we can cure Dworkin's theory of its defects. This
corrective recapitulation of Dworkin's theory can occur even
though the liberal individualist presuppositions that are its
foundation are erroneous. These erroneous foundations are
exposed more obviously in the work of John Rawls.
Dworkin doesn't make the social contract
central to his vision. Rather, he is honest enough to
recognize that social contract arguments are untenable:
I
t would be very
different, of course, if every citizen were a party to an
actual, historical agreement to accept and obey political
decisions taken in the way his community's political
decisions are in fact taken. Then the historical fact of
agreement would provide at least a good prima facie case
.... So some political philosophers have been tempted to say
that we have in fact agreed to a social contract of that
kind tacitly .... But no one can argue that very long with a
straight face. 21
Rawls, in contrast to Dworkin, presupposes
a state of nature
22 and a social
contract.
23 The trouble is,
rights-centric, individualist, social contract liberalism
willfully ignores the realities of social
injustice. It
also ignores the fact that there never was a social contract,
nor any state of nature. Social contract theory also ignores
related problems: How is the social contract is formed? Why
does the social contract bind successive generations?
24
Failings such as these basically doom liberal individualist
theory, because faulty conclusions generally follow faulty
presumptions.
I do not regard Dworkin or Rawls as having
crafted theoretically tenable versions of natural law, despite
the fact that I regard natural law theory
25
as correctly describing some laws, for example,
jus cogens.
Positivism and natural law are complementary, not dichotomous.
Dworkin and Rawls do not present tenable theories because they
work from faulty basic presumptions and/or fail to adequately
define basic terms.
Although social contract / liberal
individualist rights discourse is generally incoherent due to
its disconnect from reality, tenable rights discourses do
exist. Hohfeld argues that rather than thinking of "rights" as
implying corresponding "duties" and "remedies," or even other
"rights," we should recognize the term "rights" as fatally
flawed.
26 He proposes in its
place a Pierceian semiotic analysis with about eight different
forms of legal relation.
27 Of course, Pierce's
semiotics creates an infinite number of potential forms of
claims. One main point of Pierce's semiotics is that between
any two things there is a third relation, and between the
relation and either of the two things there is another
intentional entity, and so on, ad infinitum.
28
So Hohfeld, following Pierce, focuses on relations between
entities, and then relations between relations, and so on.
Technically, the derivation of new terms could go on forever.
I
agree with Hohfeld in one sense, but disagree in another. He
is right to criticize rights--this recursive conceit just
showed you why, i.e., the term "right" is polysemic. We can
rapidly perceive this problem when we ask:
What is the
difference between a "right" and a "law"? We soon
discover that there is significant overlap between the two.
Are "right" and "law" the same thing? At times "right" and
"law"
do describe the same thing--but not at all
times--because "right" and "law" are polysemic terms, with
several definitions, some of which overlap, but not all. The
very terms "right" and "law" are ambiguous. Thus the term
"right," alone and unmodified, is a bad analytical tool.
Hohfeld properly seeks a more precise and
scientific terminology due to the ambiguities he noted in
rights discourse. However, his efforts at logically deducing
and distinguishing--in an ever more abstract and disconnected
way-- more and more terms, is impractical. Rather, we would be
better off if we focused on historical uses of the term
"rights" in practice (praxis) in order to identify terms
workable in the real world, rather than abstractions.
29
I argue elsewhere, I think correctly, that
all laws, whether "rights," "principles," or "plenary
decisions of the central committee," are conditional
statements, i.e., statements in the form of
if x
(condition) ...
then y (consequence).
30
Put in terms of the "bad man theory" (which I don't subscribe
to, because law isn't merely a cop with a gun),
law is a
threat and/or a promise. Wherever you see a law you can
transform it into a conditional. So, for example, "there is a
law sanctioning
x" can be reformulated as "If you do
x,
then I can go to court and force you to do not
x." And
this is incidentally how I define our first term:
vested
rights.
A vested right is a legally enforceable
claim.
Part of the problem with rights discourse
is that it is conclusory reasoning, i.e., tautology. "
Rights"
are the conclusion of power struggles. Wherever you say
"I have a right," what you
really mean is, "If you don't agree with
my claim I can get a cop and/or take you to court and they
will make you pay, one way or the other." That is a
materialist understanding of rights. Every "right" is only a
"claim," but if you can get a judge and/or a cop to back you
up, your "claim" just turned into "right." The "right" is an
abstract entity-- it does not itself have a material
existence. A "right" is a mental projection from material
reality, an abstraction and formalization of material reality.
So, I do not argue that rights are
"natural," "transcendent," "self evident," "universal,"
"forms" (that would be liberal individualist idealism by the
way). "Rights" are nominal abstractions.
Rights don't
really exist. Rights are not real entities. They are
objects of intention, ideations. I argue that "rights" do
however have a superstructural logical form (a conditional
statement:
if ... then) which is itself a reflection
of (=induced from) material existence (the facts of life) and
then reflected back into material practice (a cop with a gun,
a judge with a cop) as deductions. This is the
inductive-deductive method: We induce our life experiences
into general abstract propositions and then apply those
abstractions concretely into our future experiences.
It is important to note however that though
"rights" are not "real," they are also not merely "the bad man
theory" - a cop with a gun. "
Rights"
are effective
in part because they are logically persuasive and thus do
not need violent enforcement due to the Foucauldian
self-policing of actors.
31 Laws and rights are
not
merely threats. They are
also internalized
self-concepts, expectations,
desires. People
want
to live in a structured, organized world where they are
treated with justice. Some of us even
need that
(illusory) sense of order and fairness - and in fact
all
the more so that life is chaotic, unpredictable, dangerous
and unfair! The love of rights is at times a fear of
wrongs. So,
the idea of rights is attractive and
persuasive. It is this attractive persuasive power which
explains why a badly defined concept is also seductive. Rights
look really good when you're drunk or in love with them.
Hohfeld proposes a potentially infinite
and, in all events, complex typology. He tries to form solid
distinctions between "right," "no right," "claim" and a half
dozen or so other terms. I think these distinctions are
needlessly complex and are not in any event the language
courts have used, or even are using. Occam teaches that we
should not multiply intentional entities beyond what is needed
to explain all phenomena completely. Good science is
parsimonious because parsimony creates fewer possible errors
and results in a clearer system: a simple yet powerful and
elegant formalization with explanatory and predictive power.
Good science also builds on the basis of existing knowledge,
when possible. Thus, while I criticize "rights" as (1)
polysemic and ambiguous; (2) often merely a reflection of
inane counterfactual social contract mythology; (3) merely the
conclusion of power struggles; and (4) thus conclusory with no
inherent ("natural") a priori hierarchical superiority, I
nonetheless coerce a workable scientific definition of
"rights" by invoking adjectives, because
the exploited and
oppressed of the world need justice like you need water and
food. Rights are how we get that.
The adjectives I use to qualify rights are
not of my own invention. Rather, I draw on legal history for
qualifications of rights. I do so for three reasons.
1) Science builds on
existing knowledge to attain progress. If I can see a bit
farther, it is only because I am standing on the shoulders of
brave intelligent visionaries.
2) Courts are
much
likelier to take up ideas presented on the basis of prior
courts' decisions rather than the inventions of isolated
idiosyncratic scholars, at least in the common law, though
that is less true in civilianist law.
3) Qualifications of
"rights" drawn from existing legal terminology can be used to
disambiguate the term "rights" adequately to render it
scientifically useful.
The crux of Hohfeld's argument is that
"rights" do not necessarily imply corresponding remedies,
duties, or other rights. However, Hohfeld seems more
interested in taking up Peircian semiotics than in studying
legal history. A piercing analysis of legal history would
quickly reveal existing vocabulary useful for
disambiguating
the term "right"--a polysemic and conclusory shibboleth--which
enables us to coerce the term into something scientifically
useful, an unequivocal element of legal science. A scientific
approach to law/right distinguishes first between perfect
(vested) rights and imperfect rights, to which we now turn our
attention.
Perfect rights are vested rights, and the
two terms are here used interchangeably. That is, they give
rise to a legal claim enforceable in a court of law. By "an
enforceable claim" I mean simply a conditional assertion with
an imperative consequence: If defendant does
x,
plaintiff can go to court and force defendant to do not
x.
To say a person has a right is conclusory, because rights are
the conclusions of power struggles. However, to understand in
whose favor the power struggle will be decided, it is crucial
to distinguish between
vested (perfect) and
executory
(imperfect) rights. For every vested right there is a
corresponding legal remedy. Moreover, for every vested right
there is a corresponding legal duty. Finally, vested rights
may (or may not) imply other accessory rights.
Historically, property consisted of the
rights of use (usus), including abuse (abusus), and also the
rights to the products of the property, e.g., fruits and rents
(fructus).
The right of property ownership becomes
vested by actual possession coupled with good legal title.
Historically, if one had good title and actual possession,
there was not much anyone else could do about how the owner
used, abused, or consumed his property or its products. Of
course, this concept of absolute exclusivity and precisely
defined right is completely alien to contemporary legal
thought, which sees rights as relative, divisible, and
somewhat amorphous.
I make the point not to say which
conception of property is better or fairer, but to demonstrate
the internal coherence of the Roman law here, which was so
coherent it was taken up throughout Europe. Good doctrinal
knowledge can be the basis for coherent reform laws. At the
theoretical level, we can - and even should - likewise argue
over whether conceptual jurisprudence
(
Begriffsjurisprudenz)
32
or legal process interest-balancing (
Interessenjurisprudenz)
33
is more effective, and whether those theories are
complementary or contradictory, and in what regards. But to do
so we need a common language that will be taken up and used by
courts: Perfect rights imply a remedy and a corresponding
duty. This is what distinguishes them from imperfect rights,
to which we now turn our attention.
The next form of rights I wish to speak of
are "imperfect rights." Imperfect rights do not necessarily
imply any legally enforceable claim, corresponding legal duty,
or legal remedy. They
may, however, imply political
remedies, practical remedies, or a means of transforming a
claim into a perfect right.
There are several types of imperfect
rights. A
permission, like a
license, is
revocable at the will of the grantor. A
privilege may
also be revocable at will--there is a right, but it exists
only to the extent of the grantor's will. These are revocable
rights.
I wish to go hunting. To do so these days
I need a
license; I have no right to hunt without the
permission of the state. Since the activity is dangerous, and
its object is
res communis, the state grants me the
license but maintains the ability to revoke its grant at-will.
34
The point is, the right exists, but is defeasible.
In contrast, a mere expectancy is not even
held at the will of another. It is a potential right. If one
executes the required act, the right is actuated and
transformed from a mere expectancy (an imperfect executory
right) into a vested perfect right (and thus a legally
enforceable one). These are potential rights.
I still want to go hunting, and now I have
obtained the mandatory state license. I now have the
opportunity to get a vested right to wild meat by hunting and
killing Bambi (or Thumper, take your pick). Now, if I shoot
Bambi and you shoot Bambi, and each shot is mortal, we each
have an expectancy--but no vested right. Rather, the right
vests in whoever between us reaches Bambi's corpse first and
then takes it (
caption). Here, caption vests the right.
This fact pattern, taken from
Pierson
v. Post,
35 is the
same
issue addressed by
Marbury v. Madison,
36
i.e., whether one's interest (in wild game or a commission) is
a mere expectancy or a vested right. Of course, these
distinctions are conclusory! They are
the conclusions
of
power struggles. However, they are
predictable
conclusions that follow
certain rules of argumentation.
These rules must themselves be
predictable, because
otherwise basic business transactions which benefit society at
large could not occur. Just as people
need rights to
feel safe (self-preservation), people also need rights to
prosper (self-actualization). Small wonder that there is such
a to-do about rights!
Hortatory rights are another form of
non-vested rights, i.e., imperfect rights. Hortatory rights
can and should be distinguished from revocable rights and
potential rights. Hortatory rights are desirable programmatic
political goals for the society to attain. They do not create
any enforceable individual or collective legal claim. They do
however give rise to a collective political claim. Most
interestingly, hortatory rights can be used as interpretive
guides for the
determination of substantive rights - that is, as warrants for
other arguments.
37 So, though rights
such as mere expectancies and hortations are
not
vested, they nonetheless have legal significance. Hohfeld is
right, there is more to rights than meets the eye!
The right to food is a great idea.
39
No one should starve. People who are starving
cannot
help you; people who are not starving
can help you.
People who are starving are desperate and have nothing to
lose. People who are not starving are not so desperate as to
kill themselves (or you) in order to feed their families.
However, the right to food is a collective programmatic goal,
an objective to be attained over time, as society enjoys
increased economic strength. Further, the right to food, a
hortatory programmatic right, serves as an interpretive guide
to the positive binding content of other laws.
All imperfect rights have this in common:
they do not imply any enforceable remedy, any other right, or
any other duty. They may however create a political claim.
Some imperfect rights can be transformed into perfect rights.
Others cannot. Hortatory rights do not give rise to a chance
to create a vested right on performance of some given action.
Expectancies do. In sum, imperfect rights create no current
legally enforceable claim. They may sometimes be able to be
transformed into vested (perfect) rights; they may give rise
to a political claim; they may even serve as a guide to the
interpretations of other laws, which in turn would determine
whether other rights are or are not vested.
This defeasible character of rights
explains in part why classical philosophical logic is not an
accurate analytical tool in the context of rights discourse.
Aristotelian theoretical logic (unlike his practical logic -
phronesis)
is atemporal and non-
defeasible. So rights discourse, for
Aristotle, would have been lost in the uncertain operational
world of rhetoric. Aristotle did not make "rights" central to
his vision of justice.
40 Rather, he was a
materialist (and quite rightly so). Further, Aristotle's
theoretical logic was non-defeasible (legal logic) because his
theoretical logic concerned universal truths.
41
In contrast, Aristotle's legal praxis (rhetoric) was
defeasible (practical reasoning), i.e., practical reasoning
concerns contingent, not necessary, truths. For Aristotle, the
machinations of rhetoric were tactical, even lies--the lies of
an advocate defending his client.
Aristotle's
theory (logic) was a
tool for
judges and legislators. His rhetoric
(practical reasoning -
phronesis) was a tool for
advocates.
These two components of the Aristotelian organon were
epistemologically and ontologically very different. They were
intended to serve entirely different functions. Aristotle did
not want, expect, or desire judges to take either parties'
advocate "at face value," but did expect judges to recognize
advocates as cunning clever rhetoricians, and thus view their
arguments skeptically and prudentially within the greater
framework of a scientific object which stemmed from the nature
of things.
This was not the adversarial system as we see
it today. There was no expectation of truth emerging from
the conflicting lies of the advocates. Truth was instead
guaranteed by the judge as guardian of an aristocratic order
based on merit. Truth was not, and could never be, the product
of the conflicting lies of the advocates in the Greek justice
system.
There are several other popular and legal
distinctions among rights.
42 I do not find them
particularly useful analytically speaking. However, others may
disagree and any typology should try to be complete.
Sometimes courts and commentators assert
that fundamental rights are
procedural but not
substantive.
Rationales supporting their arguments include:
1) Procedural
rights determine the content of other rights;
2) Procedural
rights do not inflict any (or at worst, only minimal) external
costs; and
3) Procedural
rights are "negative" "freedoms from" state interference not
"affirmative" "rights to" resources.
I don't find those arguments so
persuasive. That isn't the point. The point is that whether
there is or is not a "right to education" doesn't depend on
arbitrary processes. It depends on who argues from more
warrants more persuasively. I do not find the "
substantive"
versus "
procedural" distinction at all useful in
determining whether a right does or does not exist and what
its content is or implications are. But you might
disagree--and so might a judge, and in the end it is He who
counts.
43 The law certainly
does make the distinction between "substance" and "procedure,"
rather frequently, in fact.
Similarly, the distinction between
"affirmative" "rights to" versus "negative" "freedoms from"
also strikes me as not very useful. However, courts make that
distinction fairly regularly, in predictable fashions which
advocates as rhetoricians cannot afford to ignore, and we as
legal scientists must account for--if possible--as something
other than stupid judges not thinking enough about the lies
they are told by advocates.
The real point about rights
discourse--beyond seeing it as conclusory yet tractable and
able to be coerced into workable definitions which can be
successfully presented to courts--is this: Even if we can
expose or impose internal rationality and coherence on the
law, that doesn't change the fact that the system can be both
internally coherent and unfair. Guess what? It often is.
We can usefully distinguish "rights" from
one another by disambiguating the polysemic term and supplying
historically-accepted qualifying adjectives. Such
disambiguation is necessary to determine whether and to what
extent we can infer among rights, a matter to which we now
turn.
There seem to be at least three forms of
normative inferencing:
1) Inferring a
duty from a right ("for every right there is a correlative
duty");
44
2) Inferring a
remedy from a right ("for every right there is a remedy");
45
and
3) Inferring a
right from some other right (e.g., "the greater implies the
lesser").
46
These three inferences are different from
each other in theory, although they seem to always elicit the
same answer in practice, i.e., "sometimes." Rights do not
necessarily
imply remedies, duties or some other right, but they
possibly
do. We have seen examples where I have a right but you have no
corresponding duty (
ferae naturae), or where I have a
nominal right but no enforceable claim (hortatory programmatic
rights). When the right is "vested," it implies duties and
remedies and maybe even other rights. When the right is
"imperfect," i.e., "executory," then it has no
necessary
implications, though it
may have possible
implications, including a political remedy or influence upon
other interpretations.
So, can we infer among norms?
Paradoxically, Kelsen, though arguing for a variety of
conceptual jurisprudence, did not believe we could infer among
norms (his view changed from the first edition of
Pure
Theory of Law, where he did apply logic to the relations
among norms,
47 to the rejection of
logic as governing
the relationships among norms in his
General
Theory of Norms 48). This was so
because he took up the popular view regarding the relationship
between facts and statements about facts, which is attributed
(in my opinion, wrongly) to David Hume.
49
I reject Kelsen's self-defeating view of norms and argue that,
in fact, we can infer from one norm (rule) to another. How do
we infer among norms (rights)? We infer among norms-- e.g.,
rules, rights, principles, policies, standards, and
goals--using logic. We use natural reasoning to render
implicit relations explicit and thereby determine the natural,
fitting, and appropriate relations among rights, duties, and
remedies. Thus, we use well-known, logical methods, namely:
1) Induction
(common law): Applying the rule in one case to another case;
2) Deduction
(civil law): Inferring from a general rule to determine the
outcome in a specific case;
3)
Inductive-Deductive Reasoning: Using induction to generate new
deductive rules and then applying those deductive rules to new
cases;
4) Analogical
Argumentation: Arguing that common characteristics 1, 2, and 3
make A like B.
50 (Analogical
argumentation, unlike deduction, is not a theoretically
necessary
conclusion);
5) Probabilistic
Argumentation: I.e., statistical argument;
6) Ampliation:
Developing a new general rule from a set of cases;
7) Teleology:
Arguing from, or to, the goals of the law;
8) Forward
Chaining of Inferences: Connecting inferences using basic
logical functors
51 (implication,
conjunction, disjunction, strict implication, negation, etc.);
9) Backward
Chaining of Inferences: Result-oriented reasoning, chained
together using the above-mentioned functors; and
10) Anything else
that will convince the judge. Really.
Rights are implied from well-formed
arguments, which in turn are based on and invoke warrants.
Essentially, the task of legal argumentation is to assemble
warrants for a particular interpretation. Whichever side
amasses more and better warrants for its desired
interpretation wins.
This persuasive function of rights
discourse is crucial to the legitimization of the state.
It might seem bizarre to be talking about
"rights" at all since they do not have any real existence and
are in fact merely the conclusions of power struggles. Rights
are legal fictions. So is the state. However, they are
fictions backed up with force. Is that persuasive? No. Robbery
is also backed up with force. Moreover,
robbers think they
are acting fairly: "I only steal from the rich." But a
just state is not a mafia writ large, a band of thieves.
What makes the just state somehow
different than a robber or a criminal gang? Given that the
state and the rights it creates and upholds are legal
fictions, why are laws other than arbitrary? Why
must/should/does the state use logic to determine its laws?
Laws are made according to rules of logic in order to be
persuasive so that the system is perceived as just and thus
becomes a self-enforcing, self-policing, and self-reproducing
foucauldian panopticon.
52 Laws made and
argued logically persuade judges and the general public that
the outcomes they generate are fair. The state and its laws
are
fictions-- fictions backed up by a gun.
But the state and its laws are so much
more than a fiction backed up by guns. These fictions are also
backed up by expectations, desires, social sanctions,
even
hopes and dreams. The result?
Voluntary compliance
with rules, and their enforcement by the ruled on the
not-so-voluntarily compliant. Though the state and its
laws are fictions, we ignore them at our own peril,
and
they have predictable operationality--unlike a band of
criminals. The legal system uses logic as a tool for
self-policing so that the system is persuasive, self
enforcing, attractive, and thus reproductive of hierarchy. The
rules are
not arbitrary, capricious, and/or
universally or even generally abusive--class bias (race is a
proxy for class in the U.S.) is implemented systematically and
operationally, with plenty of places for opt-in and opt-out -
and thus a remarkable flexibility. Otherwise no one would obey
or ensure others obey. Finally, not only does the legal
system use logic as a tool for self-justification, it uses the
rights formed out of that logic as the means to the end of the
good life. The system is not only
persuasive, it is
also
attractive, self-enforcing, self-reproducing, and
sustainable--it produces and reproduces hierarchy and
structures conflict. Criminality isn't sustainable because it
disincentivizes production and raises transaction costs.
Criminal conflicts are completely unstructured. People have
rights because they
need them (or at least think they
do), and because they are, at least sometimes--maybe even
often--
a
useful way to organize the social body, to channel social
conflict and make it less and less destructive.
Rights as commands have no truth-value and
thus cannot imply anything. But the idea of rights can be
persuasive, and in fact decisive, when linked to logical
arguments based on policy and purpose (teleology), on similar
structure and facts (analogy
53), on practical
observations (inductions), or on theoretical
a priori
rules (deductions). "Rights" are like a magnet; a tool for
amassing and structuring arguments and their warrants and also
for structuring expectations and desires.
Properly
structured, rights discourse can be used by progressives to
undermine racism, sexism, homophobia, patriarchy, greed, and
war. "Rights" are a weapon.
And whether that weapon will be used by or against the
exploited and oppressed depends upon how effectively rights
are marshaled by the progressive population.
Rights are the conclusion of power
struggles. Thus, all statements of rights are conclusory.
Statements about the conclusions of power struggles are, well,
conclusory. If that statement seems tautological it is,
because it is. When rights are expressed as commands, they are
mere imperatives, lack any truth-value, and imply nothing; it
is impossible to infer truth or falsehood exclusively from
statements that are neither true nor false. In contrast, when
rights are expressed as conditionals, they may have a
truth-value and imply other duties, remedies, and even other
rights.
At least in the first world, rights
discourse invokes numerous falsehoods (such as the failed
social contract myth) and is analytically ambiguous
(potentially infinite terms and definitions) and, in my
opinion, is generally based on flawed assumptions (liberal
individualism, even at times philosophical idealism e.g.
neoplatonism). Thus, rights discourse can, and at times
should, be avoided due to ambiguity and the potential for
abuse. True, one can disambiguate the terms. However, for
legal science (i.e.,
la doctrine,
Rechtslehre,
scholarship) one would be much better off using an unambiguous
logical syntax such as logical functors. Logical functors
express legal relations as logical operations (e.g.,
conditional statements as parts of syllogisms).
However,
since rights discourse is so dear to Anglo-American liberal
individualism, it is inescapable. Thus, this essay tries to
coerce the pre-scientific (neo-)feudal term "rights" into a
scientifically-useful tool, such that others who insist on
using or discussing "rights" may do so while avoiding some of
the traps of legal theory - such as Hume's "law." We could
avoid rights discourse altogether if we merely used logical
functors. For example, ((p=>q)* (q=>r))=>(p=>r) is
so much clearer than Dworkin. Right?