Wednesday, October 29, 2014
Taking Rights Seriously
Rights are, in essence, epistemological – rather than moral -- in character, although obviously there still might be much grist for the moral mill to grind when rights are considered from the foregoing perspective. More specifically, rights either reflect what is known, beyond a reasonable doubt, concerning the nature of the universe, or rights reflect what is not known with respect to the nature of reality.
What is collectively known beyond a reasonable doubt -- and, therefore, agreed upon -- concerning the ultimate nature of reality or how human beings fit into that reality is fairly limited if not miniscule. Consequently, all legal, political, social, and moral considerations reside deep within epistemological shadows … although interstitial pieces of information do poke through here and there.
As a result, we are left with ignorance as our existential companion. Whatever certain individuals might know beyond a reasonable doubt (be they saints or savants or both), such understanding does not necessarily transfer well to the collective level where many kinds of reasonable doubts might be advanced to lower the credibility rating of some given idea or insight from: ‘knowledge’ and ‘truth’, to: ‘information’ and ‘belief’.
The natural law of ignorance suggests that our collective epistemological relationship with the universe is such that we cannot demonstrate, beyond a reasonable doubt, that human beings are entitled to anything except having a fair opportunity to push back the horizons of ignorance. Acquiring knowledge is of significance because of its potential for shedding light on the question: Which choices will best serve us amidst the many possibilities with which we are confronted – both individually and collectively? Therefore, everyone has a right to seek such knowledge.
In fact, even if it were the case that the foregoing sorts of knowledge were never -- or could never be -- acquired, people still would have a basic entitlement to try, as best they could, to uncover such knowledge. The underlying right is one of seeking … not necessarily of finding.
Given the foregoing considerations, what does it mean to have a fair opportunity to push back the horizons of ignorance? One dimension of fairness that already has been touched upon concerns the issue of reciprocity.
If my right to push back the horizons of ignorance is not matched by the reciprocal right of others to do the same sort of thing, then such an arrangement would appear to be inherently unfair. Another way of expressing this idea is to say that unless one can demonstrate beyond a reasonable doubt why there should be departures from the condition of reciprocity, fairness would seem to indicate that everyone’s opportunity to push back the horizons of ignorance should be relatively equal to each other.
The efficacy with which various individuals take advantage of the aforementioned opportunity is something that is not likely to be capable of being equalized to any appreciable degree. Nonetheless, however effectively a given individual might be able to engage such an opportunity, this sort of productivity does not entitle an individual to leverage such ‘progress’ in a way that would adversely affect, undermine, or interfere with other people continuing to have a fair opportunity to push back the horizons of ignorance.
One could, of course, put forth arguments of reasoned meaningfulness with respect to why the aforementioned sort of effectiveness or productivity should justify departures from the initial condition of permitting everyone to have a fair opportunity to push back the horizons of ignorance. However, such arguments are likely to be fairly arbitrary in the sense that they could not demonstrate beyond a reasonable doubt that such departures would be considered justifiable by a randomly drawn group of people who had no vested interests in such considerations … the burden of proof rests with those who would wish to depart from the default setting given expression through the law of ignorance.
Therefore, whatever ‘progress’ an individual might make with respect to the issue of pushing back the horizons of ignorance, this cannot be used to disadvantage other people from continuing to have a fair opportunity with respect to that same project. This is part of what is entailed by the idea of reciprocity.
On the other hand, there does not appear to be any kind of argument which could be put forth that would demonstrate, beyond a reasonable doubt, why someone could not share what she or he has learned with others to assist them, if they accepted such assistance, with respect to their attempts to push back the horizons of ignorance. The foregoing point does not necessarily mean that someone would be obligated to share the fruits of his or her efforts with others in relation to the challenge of ignorance … only that nothing would seem to stand in the way of someone doing so if this is what that individual wanted to do.
Does the right to basic sovereignty – that is, having a fair opportunity to push back the horizons of ignorance – entitle people to anything beyond the kind of primitive sense of reciprocity that has been outlined above in which everyone has a chance to chip away at the frontiers of ignorance in his or her own way? I believe the answer to the foregoing question is: “Yes.”
If people do not have, in some minimal fashion, access to the requisite food, clothing, shelter, health care, education, and other resources that might play a central role in being able to struggle toward pushing back the horizons of ignorance, then one might legitimately question whether such people actually are being given a fair opportunity to engage the existential project at issue. A person who is hungry, homeless, sick, illiterate, and cold is likely to have a difficult time trying to push back the horizons of ignorance.
Similarly, if people do not have, in some minimal fashion, protection against the sort of oppression, exploitation, coercion, duress, undue influence, abuse, and interference that could not be demonstrated to be – beyond a reasonable doubt – justifiable (and one wonders whether any of the foregoing activities could ever be justified), then, again, one might legitimately question whether, or not, those individuals who were subject to such arbitrary constraints on their attempts to push back the horizons of ignorance could still be considered to have a fair opportunity with respect to constructively engaging the ignorance in which most of us are rooted. While being oppressed or abused does not necessarily prevent a person from trying to push back the horizons of ignorance, such forces are likely to create an unfair playing field with respect to the ‘game’ of life.
Quite a few of the basic rights and freedoms that are given expression through the first ten amendments to the Philadelphia Constitution can be understood as conditions that are necessary to ensure that people will have a fair opportunity to engage, if not solve, the challenges of life with a minimum degree of interference by, or obstruction from, others. For example, rights to freely assemble and exchange information/ideas (whether through speech or the press) with other individuals are important resources through which people might be able to push back the horizons of ignorance … as is the right to be free of unreasonable – that is, arbitrary and, therefore, unjustifiable – searches and seizures.
A right to freely exercise one’s religious beliefs – providing this does not undermine the reciprocal right of others to do likewise – or a right to be entitled to ‘due process’ in the presence of an impartial jury with respect to issues that involve a potential loss of life, liberty, or property only after sufficient evidence has been presented to, and accepted by, a non-governmental agency (i.e., a grand jury) are important considerations with respect to ensuring that people will have a fair opportunity to push back the horizons of ignorance.
If one cannot show, beyond a reasonable doubt, that departures from such rights and freedoms are justified – and, again, the burden of proof is on those who would wish to depart from the default position of basic sovereignty -- then any transgression against those sorts of rights is an attempt to prevent a person from having a fair opportunity to push back the horizons of ignorance. As long as an individual must spend her or his time struggling against attempts to oppress or constrain one with respect to such rights, then a theft of time has taken place because one does not have access to such lost time so that it can be invested in engaging the issue of ignorance in a manner that a person feels might be most constructive, and, in the process, one is being denied one’s entitlement to basic sovereignty.
No right entitles someone to deny the same right to another individual. If rights are not reciprocal, then they are not rights because such non-reciprocal ‘rights’ are unlikely to be justified beyond a reasonable doubt among any group of impartial individuals (i.e., those who are: objective, unbiased, and without a vested interest) who might consider such an issue.
However, as the foregoing comments suggest, the network of reciprocity tends to be fairly complicated. Being entitled to have a fair – that is reciprocal – opportunity to push back the horizons of ignorance extends into many areas that involve various kinds of social, political, material, institutional, and legal resources.
How a person uses the available network of reciprocity that is established through the law of ignorance is up to the individual. Choice is the manner through which a person engages the degrees of freedoms or liberty that are entailed by the principle of reciprocity that lies at the heart of the sort of basic sovereignty to which everyone is entitled.
None of the foregoing should be construed to mean that everyone must have exactly the same package of material goods or that whatever goods are possessed by one individual must be equivalent to those possessed by other people. Instead, what is being advanced is the idea that everyone is entitled to whatever is considered to be minimally necessary for having a fair opportunity to push back the horizons of ignorance.
One person might have a better house, nicer clothes, more variety in food, or a more extensive health care plan, but whatever differences exist in the foregoing respects cannot be used to deny, prevent, interfere with, undermine, or obstruct anyone else from having a fair opportunity to push back the horizons of ignorance. Moreover, whatever differences exist with respect to those material goods cannot be such that those with what is considered to be the minimally necessary package of goods are not in a position to have a full – and, therefore, fair -- opportunity to push back the horizons of ignorance.
For example, one might not need caviar to have a fair opportunity in the game of life, but one needs some minimal level of calories and varieties of food to not just survive but, if so desired, to be able to tackle the issue of ignorance with considerable energy. Similarly, shelter need not be in the form of a mansion to serve the basic purpose of keeping someone out of the elements and providing enough space so that a person has what she or he needs to comfortably – although perhaps not elegantly -- engage life.
Moreover, while having health care coverage that deals with every possible contingency of life without regard to cost might be nice thing to have, that sort of coverage is not needed to be able to ensure that the vast majority of people (and, here, I have in mind at least 95 % -- if not 100% -- of the people) will have access to the sort of basic health care that will look after most of the common health problems of life and, thereby, enable those individuals to have a fair opportunity to push back the horizons of ignorance. Where one draws the line of practical, affordable limits for such basic care should be done in accordance with rational standards such as: being beyond a reasonable doubt, or being consistent with a preponderance of the evidence, but within those limits everyone is entitled to the same standard of care … although such a standard might not be capable of meeting everyone’s medical needs.
If the medical problems of a given individual – or an array of such individuals -- were so extensive that the entitlement of other people to have the sort of health care that is necessary to provide the latter people with what is considered a fair opportunity with respect to life were compromised, then, to be sure, one faces a very difficult problem. However, fairness is not necessarily a matter of ensuring that every problem will be solved for every individual … only that everyone – as far as is practically possible – should be protected by the requirement that whatever departures from the default position of basic sovereignty need to be justified by arguments that take such issues beyond a reasonable doubt among those who have no vested interest in the matter except with respect to upholding the epistemological standards which govern the evaluation of those issues.
Questions concerning the extent and kind of: food, shelter, clothing, and education, that are considered to be minimally necessary to provide people with a fair opportunity to push back the horizons of ignorance are, for the most part, a lot easier to address than are matters of health. This is because matters of health sometimes encompass anomalies that cannot be resolved – to the extent they can be resolved -- without generating a lot of difficult problems for the issue of fairness … both with respect to those individuals with certain kinds of health problems, as well as in relation to the collective who do not have such problems.
Notwithstanding the foregoing considerations, there is one observation that might be of relevance here. More specifically, if the economic, legal, and political system through which goods and services are distributed in a given society or set of societies permits excesses that disadvantage people with certain kinds of health problems (that is, resources are distributed in a way which is weighted toward, or favors, excess accumulation of goods and services rather than being channeled in such a way as to render a fairer – and, therefore, ever more inclusive set of arrangements – for distributing goods/services, including medical goods and services), then such a economic, legal, and political system would seem to be fundamentally unfair and, therefore, stands in need of being justified beyond a reasonable doubt if it is not to be considered a largely, if not completely, arbitrary system.
Ensuring that people are provided with the minimum levels of goods and services which are considered necessary to give those people a fair opportunity to push back the horizons of ignorance should not be construed to mean that people do not have to work, in some way, to attain those minimum levels of sustainability. At the same time, work should not leave a person so tired and depleted that they are unable to have a fair opportunity to push back the horizons of ignorance, and, in addition, the compensation for that work must be fair – that is, capable of permitting a person to have what is considered to be at least minimally necessary to exercise her or his basic sovereignty as human beings.
There is nothing which has been said up to this point to indicate that any given person will necessarily wish to push back the horizons of ignorance concerning the nature of the universe and the manner in which human beings might fit into that nature. Irrespective of whether, or not, any given person wishes to engage such a challenge, every person is governed by the law of ignorance which entails at least three principles: firstly, every person has a right to basic sovereignty even if such a right is not exercised to any appreciable degree; secondly, departures from that condition of basic sovereignty must be capable of being demonstrated as being viable beyond a reasonable doubt, and, thirdly, irrespective of whether a person wishes to try to push back the horizons of ignorance, that individual has no right to interfere with the basic sovereignty of other human beings who do have such a wish.
As indicated previously, the element of reciprocity inherent in the foregoing principles is not a moral obligation. It is a practical dimension inherent in our elemental epistemological condition of ignorance.
If one does not want other people to arbitrarily interfere with one’s basic sovereignty, then it is in everyone’s interest to ensure that departures from the epistemological default condition of basic sovereignty need to be demonstrated beyond a reasonable doubt. The Golden Rule gives expression to a similar sentiment -- as does Rawls’ ‘Original Position’ – each in its own way.
For more than a hundred and fifty years, one of the most influential approaches to addressing questions concerning the nature of law has been given expression through a philosophical framework known as ‘legal positivism.’ While there are a variety of ways of describing that approach to legal philosophy, and although that framework went through a major overhaul – via the writings of H.L.A. Hart (especially his: The Concept of Law) in relation to, among others, the ideas of John Austin (who is generally considered to be the founder of legal positivism) -- there are a number of core elements present in any given version of this system of thought.
For instance, one of the central elements within the foregoing perspective indicates that morality has no role to play with respect to the process of describing the nature of law. There are at least two ways of construing what is meant by the idea that morality has no role to play in relation to the issue of describing law.
One approach contends that law is nothing more, or less, than a certain set of social conventions regulating the public space through which individuals are inter-subjectively linked. As such, law is about social practices understood quite independently of considerations of whether, or not, those practices ought to be done or ought to be obeyed.
There are laws, and there are ramifications ensuing from such laws. A person conforms, or not, to those laws knowing that actions have consequences.
Under those sorts of circumstances, punishment need not be considered to give expression to a moral judgment. It is a consequence which follows from non-compliance with established conventions.
From the foregoing perspective of legal positivism, the way in which such a system of conventions came into being, or whether that system should have come into being, tends to be a peripheral matter. The important consideration for legal positivism is the manner in which certain kinds of current conventions give expression to on-going practices with respect to the legal regulation of public space (and one should note that there are some social conventions – for example, rules of etiquette -- that help regulate the public space but which are not legal in character).
There is at least one other conceptual approach to the legal positivist’s idea that morality plays no role in describing the nature of law. This perspective holds that law involves the process of making a fairly clear distinction between private morality and the rule of law as an expression of the manner in which a state/nation regulates the public space of inter-subjective behavior.
From the foregoing perspective, what moral conscience requires of an individual is different than what a state/nation requires of an individual. The law establishes those criteria which can be used for, among other purposes, navigating the boundary conditions which separate the demands of a state/nation from the demands of morality.
Whatever a person’s moral orientation might require of him or her, a state’s or a nation’s legal orientation requires something else … although there could be points held in common by the two. However, within the context of legal positivism, there is tendency to treat legal considerations as having an element of priority relative to moral considerations.
For those who subscribe to the foregoing notion of legal positivism, law is intended to settle legal issues not moral ones. Morality either has no legal standing in legal positivism or, at best, it has a derivative, subordinate standing which is dependent on what the basic source or authority for law permits with respect to those issues.
Laws are enacted by a ruler or legislature. The actions of people are evaluated in accordance with whether, or not -- or the degree to which -- such actions are considered to be compatible with, or consistent with, those enacted laws.
Legal positivism doesn’t seek to justify itself except in its own terms. In other words, it is only concerned with what the existing conventions are which govern public space and whether, or not, various sorts of actions – e.g., those of citizens, the legislature, or the ruler -- comply with those conventions.
Irrespective of which of the two former general approaches one engages, legal positivism tends to be rooted in the notion of ‘positive freedom’ that is discussed in the appendix. Legal positivism describes and analyzes what results from the process through which a given source or authority for regulating public space generates and implements regulatory injunctions.
Once such a source or authority is identified, the role of legal positivism is to describe the legal character of the injunctions and principles that are issued through that source or authority. The legitimacy of such a source or authority is never questioned … merely presumed.
Since I believe that rights are an epistemological issue and not a moral one, then a perspective which holds that morality plays no role in a proper description of the law – as is true in the case of legal positivism – will share, to a very limited degree, a certain resonance with the perspective being advanced here. However, to claim – as legal positivism does -- that once the source or authority for law is identified, then the only thing which matters – legally speaking – is the structural character of the process through which public space is regulated by means of that source or authority, is an entirely different matter.
More specifically, law – considered as a function of the dictates of a given source or authority with respect to the regulation of public space -- does not have priority over the basic sovereignty of an individual. In fact, in order to be able to successfully claim priority for the right of a given source or authority to regulate public space rather than assign priority to the basic sovereignty of an individual, one would have to be able to demonstrate, beyond a reasonable doubt, that a given source or authority had the right to do whatever it was doing with respect to such regulatory activity.
To be preoccupied with merely the logic of a process of regulating things is quite compatible with the ‘way of power’. Power never questions its own legitimacy … it only questions the legitimacy of anything which challenges the exercise of power.
On the other hand, the way of sovereignty is continuously asking for persuasive evidence – that is, evidence which is considered to be true beyond a reasonable doubt or, at a minimum, in accordance with the preponderance of evidence – for departing from the default position with respect to the basic sovereignty of individuals. Epistemologically speaking, legal positivism has little, or no, standing because it tends to avoid questions about whether, or not, a given source or authority for regulating the public space can be justified.
The idea of revolution presents problems for the legal positivist’s perspective because revolution tends to call into question whether, or not, a given source or authority has the right to regulate public space in one way rather than another. As such, revolution has no legal standing from the perspective of legal positivism since revolution raises questions that fall beyond the horizons of what a given source or authority recognizes as a legal issue, and, as such, revolution (no matter how peaceably it might be pursued) is extra-legal in character as far as legal positivism is concerned and, therefore, impermissible.
To understand the Philadelphia Constitution from the perspective of logical positivism, one merely identifies that document as the source or authority for regulating public space. The issue then becomes a matter of determining the structural character of the process which is set in motion by that constitutional document with respect to the generation and implementation of regulating the public space as a function of the dynamics among the three branches of government, together with the state governments and citizens.
If, on the other hand, one identifies the people as the source and authority for the Philadelphia Constitution – as the Founders/Framers suggested through their resolutions concerning the process of ratification – then determining the nature of the source or authority for regulating public space becomes somewhat more complicated. This is the case because one can no longer restrict attention merely to a constitutional document but, rather, one must place that document in the context of a ratification process out of which it allegedly arose.
Considered from either of the foregoing two perspectives, legal positivism would not question the legitimacy of either the Philadelphia Constitution or the ratification process. Instead, legal positivism would merely describe the way in which the regulation of public space ensued from those starting points.
To question the legitimacy of those starting points is to bring into doubt the very project with which legal positivism is concerned. To question the legitimacy of such starting points is to raise questions about whether or not the Founders/Framers were entitled to do what they did with respect to the Philadelphia Convention, as well as whether, or not, they were entitled to do what they did with respect to the document which issued forth from that assembly. To question the legitimacy of the foregoing starting points is to raise questions about whether, or not, the ratification process that led to the adoption of the Philadelphia Constitution was justified in proceeding in the way it did and whether, or not, such a process has any right to claim that subsequent generations are bound by that sort of process.
Just as legal positivism is confronted with an irresolvable problem in the context of a document – namely, the Declaration of Independence – that called into question the legitimacy of the British legal conventions as a justifiable source or authority for regulating the lives of people, so too, legal positivism is faced with an irresolvable problem if anyone were to question the legitimacy of the Philadelphia Constitution once it had been identified as the source and authority for regulating public space via the ratification process. From the perspective of legal positivism, such challenges would be considered extra-legal and, therefore, irrelevant and immaterial to the character of law as, for example, established through the Philadelphia Constitution and the ratification process.
Legal positivism is incapable of examining the issue of legitimacy concerning its own foundations. In other words, that perspective does not permit the legitimacy of a given source or authority to be questioned with respect to whether, or not, such a source or authority has a justifiable right to regulate public space.
This aforementioned notion of ‘justifiable right’ is not a moral issue. It is an epistemological question.
The problem with which we are confronted is the following one. What argument can be put forth that justifies claiming, beyond a reasonable doubt, that a given source or authority has a right to regulate the public space?
For example, claims concerning a ‘Divine Right’ to rule are epistemological in nature. If the truth of such a claim is demonstrated, then the process of ceding authority to the truth of such a claim is leveraged so that the public space can be regulated in one way (the way of Divinity) rather than another.
However, the actual basis for legitimizing a given source or authority through which, or from which, law should issue (i.e., the person claiming the Divine Right to rule) is an epistemological matter for which different ‘signs’ and arguments might, or might not, be considered as evidence in support of that sort of a claim. The argument from Divine Right is not a moral appeal but an epistemological one from which moral authority might be derived … e.g., if God has been demonstrated (and this is an epistemological issue) to be the source and authority for my right to rule, then others have a moral obligation to follow my rulings because (or so it is being argued) the warrant for such obligation is the epistemological truth of the basic premise concerning my alleged relationship with God.
The claim of the Founders/Framers that a ratification process involving the people of America would be sufficient to authorize the Philadelphia Constitution as the appropriate source and authority for regulating public space was an epistemological argument not a moral one … although moral principles might have been used as pieces of evidence that were considered to evidentially support such an argument. Among the questions which the foregoing proposal of the Founders/Framers raises are: Did the people have the right to authorize the Philadelphia Constitution as the law of the land? And, if so, what justifies that right?
The issue of justification is a request for evidence as to why one perspective rather than another constitutes a correct reflection of the nature of things. Evaluating the reliability or credibility or soundness of evidence is an epistemological project, not a moral one. That which one believes one knows concerning the character of the universe is being used to sanction whatever subsequent notion of obligation or duty might be claimed on the basis of the alleged epistemological character of the universe.
If one does not know, beyond a reasonable doubt, what the moral character, if any, of the universe is, then evaluating evidence is still an epistemological project since the methodological engagement of data to differentiate between what can be known and what is not known is all we have to work with. Moreover, even if we did know what the moral character of the universe is, evaluating evidence remains an epistemological process during which one assesses the strength of a given argument or set of experiential data in the light of what is known – and not known -- about the nature of the universe.
Legal positivism often distinguishes between primary and secondary rules. Primary rules are those ways of regulating public space that are largely a function of stated purposes, commands, orders, proclamations, and edicts which specify what a person can, and can’t do, whereas secondary rules refer to the processes through which power is institutionalized and distributed in society and, thereby, permits the basic legal commands and/or purposes of society to be channeled, altered, implemented, and extinguished.
For example, the Preamble to the Philadelphia Constitution gives expression to a set of primary rules since they constitute – in very general terms – what can (and by implication can’t) be done. The Preamble outlines what the basic purposes of legal governance in America are supposed to be … namely, to: form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty.
Presumably, what goes on with respect to law in America reflects the purposes of the Preamble. If criminal, tort, or contract laws were shown to transgress conditions necessary for justice, liberty, tranquility, welfare, and the common defense to be realized, then such laws would be changed or eliminated, and if such laws were demonstrated to enhance the likelihood of justice, liberty, tranquility, welfare, and the common defense being realized, then such laws would continue on and, possibly, serve as templates or precedents for further legal enactments.
The seven articles and concomitant subsections of the Philadelphia Constitution give expression to both primary and secondary rules. Those rules are concerned with outlining how power -- which is supposed to have been derived from the people via the ratification process -- is to be conferred, organized and distributed so as to realize the purposes of governance set out in the Preamble.
When one considers the aforementioned primary rules – that is, the purposes set out in the Preamble – one encounters a variety of problems. For example, what is meant by: ‘forming a more perfect union,’ ‘establishing justice,’ ‘insuring domestic tranquility,’ ‘providing for the common defense,’ ‘promoting the general welfare,’ and ‘securing the blessings of liberty?’
What is the rule for ‘forming a more perfect union?’ What is the rule for ‘establishing justice?’ What is the rule for ‘promoting the general welfare?’
One could, of course, take a look at what the Founders/Framers thought about such matters and try to determine what rules might be derived from their thoughts on those issues. However, as was suggested in both Chapter 1 (The Rule of Law) and Chapter 3 (Perspectives on Framing), there is no consensus concerning those matters among the Founders/Framers.
They all had different ideas about what would constitute: a more perfect union, justice, the general welfare, and so on. These differences were reflected in the problems that are inherent in the structural character of the Philadelphia Constitution since, to a large extent, those problems exist precisely because the participants in the Philadelphia Convention couldn’t agree about a wide variety of issues involving slavery, representation, taxation, rights, presidential power, legislative power, judicial power, and the power of either states or individual citizens.
In essence, the Philadelphia Constitution constitutes a set of problematic secondary rules with a capacity to change itself through processes of legislation and amendments. This capacity for change is able to take into account the views of a certain notion of majority opinion (e.g., two-thirds of both houses and three-fourths of the state legislatures in the case of amendments) but such a capacity does not necessarily solve the ambiguities that are present in the primary rules of the Preamble.
Secondary rules have no authority for doing anything other than serving the agenda that is identified through the primary rule or rules. If we don’t know what the nature of justice or the general welfare is, then secondary rules merely serve as ways to institutionalize the confusion that is inherent in the primary rules for American society.
Alternatively, one might refer to the will of ‘We the People’ as being a primary rule of American law. Even if one were able to identify the character of such a will – and opinion polls are likely to be far too simplistic, superficial and limited to be able to capture the complex dynamics of such a multi-faceted phenomenon as ‘will’ – there are other kinds of problems that arise in conjunction with the will of ‘We the People.’.
For example, what justifies claiming that the will of ‘We the People’ is a legitimate source or authority for regulating the public space? I know of no argument that can be demonstrated beyond a reasonable doubt which indicates that the will – whatever it is – of ‘We the People’ constitutes a form of sovereignty which takes priority over the basic sovereignty of individuals.
One could refer to maxims such as: ‘majority rules,’ but this sort of maxim isn’t really all that helpful because it stands in need of justification as well. Those sorts of maxims are not self-evidently true.
In fact, if one cannot justifiably link the foregoing sort of quantitative consideration (i.e., majority rules) to qualitative considerations that are persuasively tied to the character of the universe, the idea of ‘majority rules’ makes little sense. To claim that an idea which is either wrong or which cannot be shown to be right, must be adhered to just because some form of majority supports that idea is nonsensical.
Furthermore, even if one were to accept the idea of ‘majority rules,’ one still would have to sort out what kind of majority one means – e.g., 51%, two-thirds, three-fourths, or greater – and, then, one would have to be able to justify such a choice in terms of some standard that could be agreed upon … and, therefore, a standard that also would be in need of justification.
The tenability of the idea of the basic sovereignty of an individual – in the sense of having a fair opportunity to push back the horizons of ignorance – is far, far easier to demonstrate beyond a reasonable doubt than is any idea involving the ‘will’ of ‘We the People’. In fact, the foregoing right serves as a defensible protection (that is, one which can be justified beyond a reasonable doubt) for every single individual against the will of ‘We the People’ since such a will – irrespective of how it is characterized – is not likely to be able to satisfy the standard which requires that departures from the default position of basic sovereignty should be capable of being demonstrated as likely being true beyond a reasonable doubt.
Every conception of the will of ‘We the People’ concerning the nature of: ‘a more perfect union,’ ‘justice,’ ‘tranquility,’ ‘defense,’ ‘general welfare,’ and ‘liberty’ is subject to the same sort of challenge. In other words, whatever framework of understanding one generates with respect to the foregoing terms, one has to be able to justify that sort of a framework beyond a reasonable doubt … otherwise those perspectives are arbitrary.
If the primary rules of a given society are indeterminate, then this ambiguity will carry over into the secondary rules of such a society. Since the meanings of many of the primary principles given expression through the Preamble and Constitution are not well-articulated, these same kinds of problems permeate the secondary rules that govern the American legal system.
Naturally, if one adopts the perspective of legal positivism, then one doesn’t have to worry about such matters. Once one identifies the source or authority for primary rules -- for example, the will of ‘We the People’ -- and once one identifies the kind of majority rule which governs such a will (that is, once one settles on the sort of percentage that can be said to properly represent the will of ‘We the People’), then as far as legal positivism is concerned this brings the discussion to a close because one is not entitled to question the legitimacy of that which has been identified as the source or authority for the primary rules or secondary rules that are to govern the regulation of public space … from the perspective of legal positivism, we are only permitted to describe what ensues from that kind of an identification.
Why should one accept the limits which legal positivism places on what does, and does not, constitute a permissible question concerning the nature of law? What is there about legal positivism that would convince one beyond a reasonable doubt that questions concerning the legitimacy of a given source or authority for primary rules should not be asked … that justifications which can be demonstrated as being likely or true beyond a reasonable doubt should not be expected with respect to the foundations of a legal system?
Legal positivism is a methodology for descriptively engaging issues of legal governance. Aside from its capacity to offer a way (and, as will soon be explored, not necessarily the best way) to outline what goes on within this or that system for legally regulating public space, why should one adopt legal positivism as a preferred way of engaging those issues?
In fact, if an individual’s basic sovereignty will be impacted by the nature of primary and secondary rules, then the foregoing kinds of questions need to be asked. More specifically, what is the justification for establishing any given set of primary and secondary rules for purposes of regulating the public space in relation to individuals who have a basic sovereignty with respect to the right to have a fair opportunity to push back the horizons of ignorance?
There is another problem entailed by the manner in which legal positivism divides things up according to a classification process involving primary and secondary rules. If one wishes to claim that the idea of ‘rules’ describes or accounts for what goes on within any given society, there are problems inherent in such a claim.
One way of explicating such difficulties is to point out the difference between rules and principles. For instance, consider the idea of what constitutes an ‘out’ in baseball.
A player is considered to be ‘out’ if the individual: (a) fails to hit a baseball on three occasions while attempting to make contact with a ball that is thrown to the batter in an appropriate manner by a pitcher before: ball four is called during a given at bat, or a hit is made, or an out is made in some other way; (b) bunts a ball into foul territory on a third strike; (c) hits the ball to a defensive player which is either caught in the air – before it touches the ground -- or which first makes contact with the ground in fair territory before a defensive player catches the ball and manages to either tag first base or throws to another defensive player who has contact with that bag before the batter reaches first; (d) runs outside the designated base paths or runs those base paths in the wrong sequence; (e) interferes with a defensive player’s ability to play a given defensive position; (f) is caught trying to steal a base; (g) is picked off a base by a pitcher; (h) is forced out at second, third, or home when a batter fails to advance such a base runner; (i) misses a third strike which eludes the catcher but is thrown out at first by the catcher before the batter reaches that base; (j) while running the bases is struck by a ball that is hit by a batter; (k)is called out by an umpire even if replays indicate that the player was safe or did not strike out.
There are other possibilities concerning the ‘out-rule’ which could be added to the foregoing itemized list. However, enough has been said to indicate that while the idea of an ‘out’ can be fairly complex, the conditions governing it are fairly straightforward.
Of course, what constitutes an ‘out’ according to the official rule book of baseball is not written in the manner indicated above. The multi-faceted rule governing an out that was stated earlier is broken down into a lot of mini-rules concerning the issue of ‘outs’.
A person is considered to be out if any of the many mini-rules are judged to be applicable in a given instance. If anyone questions whether or not an ‘out’ was committed, then the appropriate mini-rule of the official list of rules is cited as justification for making that sort of a call.
Obviously, all of the foregoing facets of the ‘out rule’ are subject to the judgment of the umpires. That is, whether, or not, a player is considered: to have missed the ball during a swing, or to have run outside of a base path, or to have reached a base before being tagged, or to have interfered with a defensive player, and so on, these are all subject to the decisions made by one or more umpires with respect to any given play.
As complicated as the set of mini-rules might be with respect to what constitutes an ‘out’ in baseball, the degrees of freedom for what is considered to satisfy such a rule are fairly limited. Once a given event occurs during a game, then the appropriate aspect or degree of freedom of a rule is applied to the circumstances at hand … for example, did the batter: miss the ball, reach base safely, run out of the base path, bunt a ball foul on a third strike, and so on?
Similarly, the rule governing an umpire’s conduct in such circumstances is fairly straight forward. Did he or she see such-and-such?
If he/she did see such-and-such, then a given aspect of the ‘out-rule’ is applicable. If she/he did not see such-and-such, then another aspect of the ‘out-rule’ is applicable.
Theoretically, there should be no circumstance in baseball in which a given batter or base runner is not subject to one or another facet of the’ out-rule’. The rules of application tend to be clear and consistent across changing circumstances of the game.
Things become a little fuzzier when it comes to the issue of calling balls and strikes. Although the rule book specifies the precise conditions under which a pitch is to be considered a ball or a strike, umpires don’t always follow the specifications of the rule book with respect to those matters … although umpires do use those rules as a general set of guidelines for shaping – not determining – what will be called a ball or strike.
Generally speaking, almost every umpire has his or her own way of determining what will be called a ball or strike. In effect, umpires establish their own strike zone as a variation on what is called for by the rule book.
Some umpires call ‘low strikes’ or ‘high strikes’ – that is, pitches which are below or above the height that the rule book states should be a strike. Some umpires shrink the strike zone, while others expand it, and in both cases, what is identified as a strike or ball does not necessarily reflect what the rule book says should be a strike or a ball.
Under the foregoing sorts of circumstances, batters and pitchers must adjust the way they hit and pitch the ball according to the nature of the strike zone that is established by an umpire. All players can hope for is that an umpire will be consistent during the course of a game so that once players learn the characteristics of a given umpire’s strike zone they will make the necessary adjustments.
There is not likely to be any set of rules that accounts for why a given umpire establishes a strike zone in one way rather than another. Judgments are made as a function of a variety of considerations that interact with one another in complex ways rather than being functions of a process in which one consults a set of rules which specify what should be done on any given occasion.
Judgments of the foregoing kind might be the result of the interaction of a complex set of factors that cannot necessarily be reduced down to rule-governed behavior. Such a set of factors might give expression to non-linear themes which are rooted in various principles, or that set of factors might give expression to themes which are non-linear but unprincipled.
For instance, an umpire might become annoyed with the criticism that is being directed his/her way from the players, coaches, and fans of a given team. As a result, the umpire – consciously or unconsciously -- might adjust the strike zone to make it harder for both hitters and pitchers from that team to be able to play successfully.
This would be an example of a non-linear process that is emotion and ego driven. It is neither rule-governed nor is it necessarily rooted in principles … unless the principle was about getting satisfaction in some way by frustrating the players, coaches, and fans of the team that had been frustrating the umpire with their criticisms.
The umpire might not resort to such tactics on every occasion – or even on most occasions -- that he was verbally criticized by the players, coaches, and fans, and, therefore, such behavior is not really rule-governed. However, on occasion, when certain game conditions, moods, emotions, attitudes, and other factors came into alignment, such an umpire might alter the strike zone in response to the verbal criticisms.
On the other hand, there could be constructive principles of some kind that were involved with respect to an umpire’s manner of establishing a strike zone. For instance, if an umpire wanted to challenge both hitters and pitchers to alter their game to make things more ‘interesting’ for the players and for the fans, then this sort of thinking might lead some umpires to alter the strike-zone.
Nonetheless, such principles, to whatever extent they exist, follow the subjective inclinations of a given umpire. Therefore, they involve degrees of freedom that cannot necessarily be determined in any linear, rule-governed fashion.
Umpires often receive training of some kind which requires those individuals to become familiar with the rules governing the game of baseball. In addition, umpires might be taught how to place themselves in the best position to make accurate calls of one sort or another. Moreover, umpires might receive training with respect to how to deal with criticism, arguments, and other possibilities that might arise within the context of any given game.
Although much of the foregoing training might involve coming to understand all the general rules for managing a game, the judgments made by umpires during a game are not necessarily rule governed. For instance, suppose a batter asks for a time out while waiting for a pitcher to deliver a pitch.
Is there any rule which governs what an umpire should do under these sorts of circumstances? Actually, there is no such rule or set of rules governing this situation.
An umpire may take a variety of things into consideration when making the foregoing kind of a call. Is the pitcher taking too long to deliver pitches and, therefore, placing the batter at something of a disadvantage since the latter individual might have to wait so long that he gets tired and cannot swing effectively? Is the batter trying to play mind games with the pitcher and interrupt the pitcher’s rhythm? Have there been too many attempts to slow things down in one way or another during the course of the game? What is the possible impact of such slowdowns on the fans in attendance or watching the game on television? Has the pitcher given any indication that a pitch is imminently forthcoming? Could calling a last second time out lead to an injury to the pitcher if he were to suddenly alter his delivery? Could the batter’s vision be impaired in some way (e.g., rain, sweat, dust) that might prevent the batter from getting out of the way of a forthcoming pitch or having a fair opportunity to hit the ball? Did the batter injure himself/herself on a previous swing and is asking for additional time to recover? Have both sides been given equal opportunities to call for such time outs? Have such requests been made too frequently?
Umpires make a judgment and either grant or disallow such a request. However, the judgment is not necessarily rule-governed.
Instead, those calls are often made in accordance with an umpire’s sense of how to manage a game and/or in accordance with an umpire’s sense of fairness and/or concerns about ensuring that players are not unnecessarily exposed to possible injury or that the tempo of the game is not adversely affected. None of the foregoing considerations is to be found in the rule book governing baseball or in a book of rules that governs an umpire’s general conduct in conjunction with any given game of baseball.
Moreover, every umpire is likely to have a different sense of how to manage a game, or what constitutes fairness, or how to exercise appropriate caution with respect to the possibility of injury. Such a sense of things might be the result of a combination of: training, experience, likes, dislikes, insights, personality, strengths, weaknesses, and/or habits.
In whatever way the foregoing sense of things arises, a framework for invoking principles rather than rules is created through which to reach certain kinds of judgments. Principles do not have to be applied in the same way on every occasion but rely on an engagement of the available data that is interpreted, according to a complex dynamic of interacting considerations, which seem to point in one direction rather than another with respect to the call that is made by an umpire.
Principles – unlike rules – tend to be non-linear in character. In other words, there tend to be many factors that might shape and orient how such principles are exercised, and, as well, those factors tend to have positive and negative feedback relationships with one another.
For instance, consider the principle of fairness. What does fairness require with respect to whether or not someone is thrown out of the game?
Some umpires are unwilling to permit any sign of disrespect or perceived disrespect by players in relation to the way such umpires make calls. Those sorts of individuals might believe that displays of disrespect are unfair to: the game, other players, fans, umpires … and, perhaps, such signs of disrespect are not even in the best interests of the person doing the complaining. Or, maybe, those kinds of umpires don’t enjoy confrontation and won’t tolerate it.
Other umpires are much more tolerant when players, coaches, or managers complain about one or more calls. They are willing to let arguments go on for some time before reaching a point when they believe that enough is enough.
Some umpires give warnings. If such an incident, or a similar event, occurs again, someone – no matter how minor or borderline a provocation might be --is going to get tossed.
There are no rules governing these sorts of judgments. Emotions, experience, past history, expectations, concerns, beliefs, values, understandings, temperament, personality, mood, and interpretations all factor in to how any given umpire gives expression to judgment calls concerning the issue of fairness.
If fairness is defined as attempting to ensure that neither side in a baseball game is given an unwarranted advantage and that all decisions are made for the purpose of providing an unbiased environment within which a given game is to be played, then there are any number of routes to judgment that could be followed and still serve the underlying principle of fairness. This is the nature of a principle … there is a multiplicity of possible avenues for satisfying the thematic orientation of that sort of an idea.
In the case of rules – say those concerning being out or safe – a batter or runner is either out or safe according to specified conditions. There are no other possibilities, and whether, or not, a person is considered to be out or safe must be in accordance with the list of stated rules that establish the guidelines for determining those matters.
In the case of principles – say the ones concerning fairness or other kinds of discretionary judgment – there are a variety of factors that could be taken into consideration while reaching a judgment. Different people might weigh these kinds of factors in different ways without abandoning the requirement of not biasing the outcome of a game in an unjustifiable direction.
The judgment of umpires is rarely, if ever, overturned once they have been issued in a final form (that is, after consulting with one another or after looking at a permitted replay of a game event). Nonetheless, umpires are subject to oversight by individuals and committees that review the performance of umpires … a review process that could determine whether, or not, those umpires will be permitted to continue umpiring or whether, or not, they will be assigned to important playoff games.
The rules of the game of baseball tend to be primary rules. Those rules indicate what one can and can’t do on, or around, the playing field during a game.
Whoever was the source or authority for such rules (and there is some debate over how the game of baseball actually came into being), the reasons or motivations for inventing the game of baseball have led to the construction of a set of primary rules which specify the do’s and don’ts of baseball. Beyond the basic rules of baseball, there is a further set of considerations which shape the general social and administrative framework within which games of baseball are played.
For example, the notion of the ‘best interests’ of baseball occur in a social/legal context that extends beyond both the rules of baseball, per se, as well as the purposes for which the game of baseball was invented. What is considered to be in the ‘best interests’ of baseball becomes a function of what is considered to be ‘best’ by those individuals who have been given, or acquired, oversight with respect to the social/legal/administrative context within which games are played … professionally, recreationally, educationally, or within some other organized forum (such as little league).
The individuals who are the source or authority for what transpires in such contexts issue a combination of primary and secondary rules that govern the broader, administrative and regulatory framework within which actual baseball games are played. Such individuals are the ones who decide: how the structural character of the general administrative framework surrounding baseball games will be regulated; who will get assigned to which committees and offices; when games will be played; what rule changes will be considered, implemented, or interpreted, and so on.
However, the manner in which this latter group of individuals conduct themselves may be rule-governed only in part. Aside from the rule-like by-laws that establish the general framework within which such individuals make administrative decisions, many of the judgments of those people tend to operate in accordance with various kinds of principles – rather than rules … principles which are not easy to define, if they can be defined at all.
For example, what is the rule for deciding what is in the ‘best interests’ of baseball? Who gets to determine what such “interests’ are, and according to what criteria does one establish what constitutes the appropriate measure for being “best”?
Are the ‘best interests of baseball’ primarily a matter of commercial considerations? If so, are commercial considerations restricted only to owners but not the players, coaches, managers, and umpires? Could certain kinds of trades not be in the best interests of baseball? What if records are set using performance-enhancing drugs? What if players, coaches, managers, umpires, and/or owners conduct themselves in problematic ways outside of games? Should spitting be permitted on the playing field or in the dugouts/bullpens?
If one tries to analyze baseball – both the game as well as the social and administrative contexts within which the game is played – one cannot properly understand what is going on if one restricts oneself to a framework that is limited to considering issues involving only primary and secondary rules. The game of baseball spills beyond the realm of rules and enters into the territory of judgments, understandings, and interpretations that often are principle-based and not just rule-based.
To say that the judgment/interpretation of a player, manager, coach, umpire, owner, administrator or official is a matter of discretion indicates that there is no rule or set of rules which determine the precise character of those decisions … even as rules – both primary and secondary – might limit the degrees of freedom within which those individuals operate as far as playing or overseeing the game of baseball is concerned.
None of the foregoing touches on the issue of skills and strategies that are employed by players, coaches, and managers with respect to participating in the game of baseball. While there might be rule-like tendencies that govern some of what those participants do during a game, there are many judgments made during a game that are not necessarily rule-governed but are rooted in principles of one kind or another that involve issues of fairness, as well as theories about how to win, lose, and comport oneself on and off the field.
For instance, good hitting is about timing, and good pitching tries to disrupt that timing. Batters try to figure out the sequence of pitches that might be thrown during a given at bat in order to improve their timing, while pitchers/catchers try to come up with a pitch-sequence that will lower the likelihood that a batter will be able to exercise a timing strategy to his/her advantage.
What about stealing bases? Managers and base runners try to gauge the character of a pitcher’s delivery style, along with the ability of a catcher to compensate for any weaknesses in a pitcher’s movement toward the plate. Should a pitch-out be thrown? Does worrying about the runner take a pitcher’s focus away from the batter? Who is the potential base stealer? Who is batting? How have they been doing lately? Who is up next? How many outs are there? What is the count? What inning is it? What is the score? Is the game being played at home or on the road? Should one call for a hit-and-run rather than merely a steal?
The foregoing game/strategy issues are not necessarily rule-governed. Some managers are better than others in making judgments concerning what to do in any given game-situation, and if those sorts of decisions were merely rule-governed, then one likely would not see many, if any, differences in what managers do under similar circumstances.
Moreover, how managers interact with players outside of actual games is also likely to be quite variable. While there are some rules that might govern how a manager treats players, some mangers might be better than other managers with respect to navigating the shifting shoals that characterize the lives of players both on and off the field, and the reason for that differential success might be because some managers have a better grasp of the complex principles (not rules) of personality, mood, ambition, emotion, talents, confidence, and motivations that shape human behavior.
The primary rules that define the game of baseball are just that – rules and nothing more. People participate in that game with many different intentions, motivations, goals, histories, attitudes, skill-sets, and interests.
Issues of enjoyment, money, careers, poverty, education, history, recognition, fame, power, sex, influence, camaraderie, challenges, and competition can become entangled with the relatively simple rules of baseball in a wide variety of complex ways. Neither the rules of baseball as a game, nor the rules of baseball as a social/legal phenomenon are capable of properly describing or explicating what goes on within the world of baseball.
Much of what goes on with respect to any given set of legal rules or rules of governance are similar to what goes on in the world of baseball where the actual rules of baseball play a limited role. In both instances, there is no defensible linear – that is, rule-governed -- formula for determining what source or authority should regulate those activities or how many of the secondary rules -- for example a constitution or set of by-laws -- are to be interpreted.
The manner in which legislative, executive, and judicial branches of government attempt to realize the purposes of the Preamble is not rule-governed even though the Philadelphia Constitution does contain certain procedural rules for shaping and orienting those determinations and judgments. Furthermore, the seven articles of the Philadelphia Constitution provide no criteria for determining how ideas such as: “a more perfect union,” “justice,” “tranquility,” “the general welfare,” “the common defense,” or “the blessings of liberty,” are to be understood except in a procedural sense … that is, from the perspective of legal positivism, the purposes set forth in the Preamble are whatever the procedural features of the Constitution permit them to be.
The purposes, goals, intentions, motivations and understandings which induce legislators, executives, and the judiciary to combine and apply the procedural possibilities of the Constitution in one way rather than another are not part of the Constitution. While the Preamble is supposed to serve as a set of general guidelines with respect to those purposes and intentions, nonetheless, because those guidelines are effectively devoid of any specific meaning, there is nothing but procedural issues that place limits or create possibilities with respect to the purposes and intentions of legislators, executives, and jurists concerning the general principles that are articulated in the Preamble.
Moreover, aside from broadly worded ethical considerations that are supposed to regulate the behavior of the members of the three branches of government – and those ethical considerations are, ultimately, likely to be principle-based rather than rule-based (that is, they are interpretive judgment calls and not an exercise in applying rules … although rules, of some kind, might be part of the process) – there is nothing in the Constitution which clearly indicates what the intentions and purposes of the three branches should be. Within certain general procedural limits, legislators, executives, and jurists are free to have their intentions and purposes engage the Constitution in any way those individuals wish.
The Philadelphia Constitution might involve both primary and secondary rules. However, the real dynamic of governance is a matter of the principles which are rooted in the intentions, purposes, and ideologies of those who seek to leverage the procedural machinery of governance that are provided by the seven articles of the Philadelphia Constitution in order to realize those intentions, purposes and ideologies, just as the real dynamic of baseball rests not with the primary rules of the game but, rather, rests with the intentions, purposes, skills, histories, and so on of players, coaches, managers, umpires, owners, agents, and administrators.
As such, legal positivism has little of value to say with respect to the factors – i.e., the principles inherent in intentions, purposes, and ideologies – that actually determine what transpires in governance. Eventually, and at very critical junctures, the idea of primary and secondary rules breaks down as an effective way of describing and explaining the dynamics of law because that kind of an idea is incapable of handling the notion of a principle, and, yet, principles are, in many ways, as important, if not more so, than rules are with respect to understanding the dynamics of legal governance.
One implication of the foregoing point is that the meaning of a ‘right’ is entirely dependent on what the intentions, purposes, and ideologies of legislators, executives, and jurists say the meaning of that term can be … subject to certain procedural degrees of freedom that are set forth in the seven articles of the Philadelphia Constitution, along with the very general set of ideas mentioned in the Preamble. From the perspective of legal positivism, rather than treating a ‘right’ as an entitlement that has priority over the dynamics of governance, a ‘right’ becomes subject to the intentions, purposes, and ideologies of those who are the regulators of the primary and secondary rules governing the construction of public space.
According to legal positivism, the foregoing sort of an arrangement is what it is. From the perspective of the natural law of ignorance, as well as the basic right to sovereignty that follows from it, the foregoing arrangement is entirely arbitrary and stands in need of justification.
Describing what a given system of procedural rules (e.g., the Philadelphia Constitution) permits legislators, executives, and jurists to do is incapable of justifying – except procedurally -- the intentions, purposes, and ideologies which seek to leverage those rules. Legal positivism avoids asking all of the questions that need to be raised with respect to whether, or not, any given set of primary and secondary rules can be justified in any ultimate sense and whether, or not, such a set of rules actually even properly describes what is transpiring within the context of governance (as is the case when the issue of principles enters the picture).
To whatever extent principles, rather than rules, characterize a legal dynamic, then legal positivism is a problematic way of describing such a system. Even in the relatively simple context of baseball, there are many principles which are present that transcend whatever primary and secondary rules might be relevant to playing the game of baseball. Yet, those principles are very important to how players, coaches, managers, umpires, and fans engage the game of baseball.
The foregoing sorts of issues are only multiplied when it comes to complex matters of legal governance in which a vast array of principles -- that are rooted in networks of intentions, purposes, and ideologies -- engage whatever primary and secondary rules that do exist to generate the ‘legal’ regulation of public space. No matter how extensive the set of primary and secondary rules are, such a set of laws can never adequately account for the way in which individuals (whether, citizens, lawyers, government officials, or jurists) hermeneutically parse those laws, nor can such a set of rules ever adequately account or explain why those laws ought to be interpreted in one way rather than another.
Legal positivism is an epistemologically incomplete system of description and analysis because law involves much more than just a set of primary and secondary rules. Law also entails issues of principles, intentions, purposes, and ideologies that push rules beyond their limits and into conceptual territory where considerations other than primary and secondary rules – e.g., principles -- are of critical importance.
Legal positivism is also an epistemologically incomplete system of explication because it fails to question its own foundations. Describing a legal system as a function of the interaction of certain kinds of primary and secondary rules really doesn’t adequately address a person’s desire to know what, if anything, those rules have to do with the ultimate nature of reality and if one cannot justifiably demonstrate the character of that kind of a connection, then there is absolutely no reason to feel obligated to observe the requirements of those primary and secondary rules ... although one might be forced to do so in one way or another.
Obligation, duty, and rights -- to whatever extent they can be said to be viable concepts -- arise out of an epistemological understanding concerning the nature of reality. If one cannot demonstrate beyond a reasonable doubt that a certain characterization of obligation, duty and/or right reflects the nature of the universe, then those characterizations are entirely arbitrary and, as such, really have no moral authority in a collective sense … although that kind of a sense of obligation, duty, or right might have relevance to an individual’s way of proceeding through life.
The presence of force in a legal system is a reflection of the fact that, for whatever reasons, citizens do not have a sense of obligation or duty concerning the issue of compliance and, as a result, must be coerced to do certain kinds of things. The presence of force within such a system might also be considered to be an index of the incongruity – either actual or perceived -- between what that legal system is capable of justifying in some persuasive manner and what continues to stand in need of that kind of justification.
To whatever extent, primary and secondary rules cannot be demonstrated to be justifiable relative to what is understood about the nature of the universe, then there is likely to be a need for the use of force in relation to inducing people to comply with those rules. This was certainly the case with respect to the British response to the Declaration of Independence (and concomitant events), and it also has been true with respect to any number of events in post-Constitutional America in which federal and state governmental officials have used force to coerce certain kinds of behavior because those governments were unable to successfully justify to the people beyond a reasonable doubt the relationship between, on the one hand, certain primary or secondary laws, and, on the other hand, the nature of reality.
The idea that: force is an inherent feature of civilization because of the unruly nature of human beings, might be incomplete. While it is certainly true that all human beings have their weaknesses from which their neighbors are entitled to be protected, one must also critically explore the way in which rules – whether primary or secondary – that cannot be adequately justified are likely to lead to problems that would not otherwise exist if it were not for the presence of those rules and a government’s expectation that people must comply with those rules.
Sometimes people act in a way that is not compatible with existing primary and secondary rules due to their own, internal demons. Sometimes people act in a way that is not compatible with existing primary and secondary rules due to the demons that are inherent in the legal system that advocates such rules … and the latter sorts of demons are often the cause of riots and societal breakdown, as well as civil disobedience and revolution.
Part of the idea that people are entitled to have a fair opportunity to push back the horizons of ignorance – that is, they have a right to basic sovereignty – involves the entitlement to not be entangled in the interpretive and discretionary acts of government officials that cannot be demonstrated as likely being true beyond a reasonable doubt. In other words, whatever the intentions, purposes, histories, and ideologies of government officials might be, those intentions and so on are not entitled to spill over into the realm of basic sovereignty unless those officials can show why departures from the default value of basic sovereignty are warranted -- not merely in accordance with a preponderance of the available evidence but beyond a reasonable doubt.
In baseball, there is not a great deal of discussion about: the idea of ‘outs’, what is meant by the idea of being safe, how runs are scored, how many players are allowed on the field at a time, and so on. From time to time, there are rule changes in baseball involving things such as: the ‘designated hitter,’ the use of performance enhancing drugs, and so on, but none of these changes -- or any of the original rules -- need to be defended beyond a reasonable doubt with respect to the ultimate nature of reality.
People come together, construct a system within which the rules of baseball are permitted to unfold, and games are played for whatever motivations and reasons those individuals have for participating in that system. While judgments involving the game of baseball should not be arbitrary, justifying such decisions is usually done in accordance with a preponderance of the available evidence concerning the nature of baseball and people’s reasons for participating in the processes within and around that game.
Furthermore, there usually is a great deal more latitude given for making errors with respect to those discretionary judgments/decisions. Those sorts of errors will be tolerated until some non-rule governed threshold is reached and people get fired, traded, optioned, and the like.
Unlike the game of baseball, the nature of the ‘game of life’ is largely unknown. We each might have our own ideas about the character and purpose of the latter ‘game’, but those ideas cannot be demonstrated to everyone’s collective satisfaction beyond a reasonable doubt.
The reason why a different standard of rationality is applied to baseball is because, ultimately, that game has little to do with the issue of basic sovereignty. Whether baseball is played or not, life outside of baseball goes on.
Naturally if one is a player, umpire, coach, manager, administrator, or owner who is betting on the outcome of games, then one might stand to gain or lose a great deal beyond the issue of money. Moreover, if one’s baseball contract is not renewed, then one might face financial or career hardships.
Nonetheless, despite the possibility of those difficulties, nothing which happens in baseball is capable of depriving people of their right to push back the horizons of ignorance. If, somehow, baseball were suddenly constructed in such a way that the outcomes of games directly affected everyone’s basic sovereignty, then requiring baseball players, coaches, managers, administrators, and owners to make decisions that were capable of being shown as likely to be true beyond a reasonable doubt might well come into play.
Why should government officials be entitled to make discretionary decisions that affect a person’s basic sovereignty without being required to demonstrate the likelihood that those judgments are correct or true beyond a reasonable doubt? Why would anyone rationally agree to cede her or his basic sovereignty to anything less than a decision that was based on considerations that were, beyond a reasonable doubt, likely to be true?
The primary rules inherent in the Preamble to the Philadelphia Constitution do not offer a justification that is likely to be true beyond a reasonable doubt with respect to the meanings of the rules that are given expression through that Preamble. The primary and secondary rules that are contained in the Philadelphia Constitution do not offer a justification that is likely to be true beyond a reasonable doubt with respect to how ambiguities inherent in the primary and secondary rules of the Preamble and Constitution should be interpreted or understood, and even if there were complete agreement concerning how those ambiguities should be understood, none of this necessarily justifies, beyond a reasonable doubt, that those primary and secondary rules should be permitted to undermine, limit, interfere with, oppress, or extinguish the basic sovereignty to which, according to the law of ignorance, everyone is, beyond a reasonable doubt, entitled.
The intensions, purposes, and ideologies of government officials – including jurists – have not been demonstrated as likely to be true beyond a reasonable doubt with respect to their claims of having pre-eminence over the issue of the basic right of people to have a fair opportunity to push back the horizons of ignorance in life. There is a major disconnect between what government officials can demonstrate beyond a reasonable doubt as likely to be true and what they claim to have the ‘right’ to do on the basis of a given set of primary and secondary rules.
Rights are an epistemological issue. Even when moral arguments are presented those arguments are couched in terms of epistemological theories concerning the nature of reality such that if certain things concerning the nature of reality are true, then people are obligated to act in compliance with that truth.
It is not enough to advance primary and secondary rules concerning the nature of law. Law must be justified beyond a reasonable doubt with respect to its alleged demonstrable capacity to enhance the right of people to have a fair opportunity to push back the horizons of ignorance.
Governments have no rights or entitlements. Instead, governments have a responsibility (an epistemological one) to ensure – within the limits of their capacity to do so -- that the basic sovereignty of citizens is protected, preserved, enhanced, and, to the extent that is possible, realized.
The power that governments derive from the people has only one purpose that can be demonstrated beyond a reasonable doubt. That purpose is to serve the interests of every individual’s basic sovereignty … that is, the right to have a fair opportunity to push back the horizons of ignorance concerning the process of life.
As stated earlier in this chapter, the foregoing right entails a variety of services – such as food, shelter, clothing, education, defense, legal protections with respect to arbitrary search, seizure, and detention, as well as health care in some minimally acceptable form – that are necessary for a ‘fair’ opportunity to be afforded to people through which they can exercise their basic sovereignty. One is not entitled to resources except to the extent that the arrangements through which those resources are distributed do not disadvantage anyone’s opportunity (whether in the present or in the future) to pursue their right to basic sovereignty.
In addition and also as previously noted, the right to basic sovereignty entails an array of degrees of freedom that are likely to enhance the realization of that right. These degrees of freedom would involve such things as: speech, peaceful assembly, the exploration, distribution, and critical discussion of ideas, conscience, travel, and so on.
When any, given, possible decision of a government can be shown to be likely to affect the basic sovereignty of people in one way or another with respect to the foregoing considerations, then the issue is not whether that kind of a decision can be shown to offer the best moral interpretation of the existing primary and secondary laws (as Dworkin might claim). After all, trying to figure out what constitutes the best moral interpretation of such laws is a perspective that is, itself, in need of justification with respect to its ideas concerning the criteria and standards for evaluating what constitutes the ‘best’ sort of moral argument.
Government decisions have but one standard to meet. Can those decisions be demonstrated beyond a reasonable doubt as being likely to enhance the basic sovereignty of everyone … and not the sovereignty of just some of the people?
Those decisions are epistemologically based, not morally based. The important consideration is not whether one can come up with a good moral argument for interpreting certain primary and secondary rules in one way rather than another, but whether those rules and interpretations can meet the epistemological standards with which any jury is faced in a criminal trial when the life or freedom of a person on trial is being threatened.
The potential loss of basic sovereignty with respect to each and every human being is on trial whenever a government seeks to make decisions that have the potential for affecting that sovereignty. Why would one suppose that the epistemological standards that need to be satisfied in such cases should not reflect the structural character of the epistemological standards that must be met in every criminal trial?
The legal positivist’s approach to interpreting law holds that judges – like umpires in baseball – have a certain amount of discretion with respect to interpreting the meaning (or application) of primary and secondary rules with respect to a given set of circumstances. According to that perspective, reasoned arguments can be given that purport to justify the exercise of discretion in those cases, but, whether, or not, a judge can offer an argument that is likely to be true beyond a reasonable doubt with respect to the manner in which a given act of discretion -- along with the primary and secondary rules that are being interpreted -- is capable, on either level, of reflecting the nature of reality is quite another matter.
The idea of ‘hard cases’ refers to those situations in which judges encounter difficulty in trying to put forth a reasoned argument that shows how: a given set of social circumstances, together with primary and secondary rules, as well as precedents, can be brought together in a persuasive fashion. ‘Hard cases’ are contrasted with allegedly simple legal cases in which judges are supposedly easily able to identify the logical circuitry that is believed to tie together: A given set of social circumstances, primary and secondary laws, as well as various precedents, in a persuasive and straightforward fashion without any need to call upon the exercise of discretion or interpretation with respect to those cases.
From the perspective of the present book, both the ‘hard cases,’ as well as the ‘simple’ cases of legal positivism constitute epistemological distortions which prevent people from understanding that unless primary and secondary rules can be justified beyond a reasonable doubt with respect to their capacity to enhance everyone’s basic sovereignty or right, then the attempts to combine: precedents, ‘facts,’ reasoning, and interpretations that are used to construct persuasive arguments with respect to the application of various primary and secondary rules in a given social context are misguided from the beginning.
Moreover, to try to argue that there is a best moral sense that can discovered with respect to the interpretation of ‘hard cases’ is also an epistemological distortion of the actual existential character of the situation with which human beings are faced – a situation that is described via the law of ignorance. The idea that there is a ‘best moral sense’ that can be discovered in ‘hard cases’ gives expression to a perspective that lends tacit approval to the underlying existence of certain primary and secondary rules by arguing that there is some best moral sense that can be made of those primary and secondary rules without addressing the issue of whether, or not, those rules can be justified themselves.
Even if it were true that there was some best moral sense that could be made of how to interpret a given set of primary and secondary rules, unless one can justify those primary and secondary rules in some manner that demonstrates how those rules serve the interests of the basic sovereignty of every human being beyond a reasonable doubt, then discovering a ‘best moral sense’ is irrelevant to the fundamental right of human beings with respect to the issue of having a fair opportunity to push back the horizons of ignorance. Moreover, as history has clearly shown, no one has been able to successively demonstrate why everyone should collectively accept, beyond a reasonable doubt, the idea that one set of criteria concerning the notion of what constitutes a ‘best moral sense’ -- as opposed to other such possibilities – is likely to be true.
Can someone put forth reasoned arguments of why one notion might be better than another sort of argument with respect to the idea of a ‘best moral sense’ in relation to the application of a given set of primary and secondary rules to a certain set of social circumstances? Yes, people can do – and have done – this.
However, being able to offer those sorts of reasoned arguments doesn’t make them ‘better’, ‘best’, or ‘right’ in anything but a completely arbitrary way. Furthermore, if someone can’t demonstrate to me why arguments that are supposedly capable of making the best moral sense of certain primary and secondary rules cannot be shown as likely to be true beyond a reasonable doubt, then why should anyone bother with the former sorts of arguments at all?
Making the best moral sense of a situation that is actually untenable because of problems inherent in a given set of primary and secondary rules seems to be rather a quixotic project. Judges, government officials, and academics might be able to rationalize taking the time to construct those kinds of arguments, but those individuals tend to miss, if not avoid, the only issue that should be addressed – namely, establishing, preserving, and enhancing every person’s right to basic sovereignty with respect to having a fair opportunity to push back the horizons of ignorance concerning the nature of reality.
Some individuals (e.g., Dworkin) make a distinction between ‘justice’ and ‘fairness’. Justice is characterized as giving expression to whatever is considered to constitute the correct functioning of a system of governance with respect to the distribution of goods, services, resources, and opportunities. Fairness, on the other hand, supposedly refers to the character of the social or political process through which the foregoing sense of justice is realized.
As such, fairness and justice would seem to have a ‘means-ends’ relationship. The right outcome – i.e., justice – cannot be realized if the right process for achieving that kind of an outcome – i.e., fairness -- is not utilized.
How does one determine what the right outcome is with respect to the distribution of resources? Can that sort of a question be answered without knowing what the ultimate nature of the universe is and what the truth concerning that nature has to say, if anything, with respect to the idea of what would constitute the correct outcome for distributing resources and opportunities?
What if justice were about acting in accordance with the requirements of truth and not just about distributing resources? What if justice were about the process of treating every facet of the universe with what is due to it as a function of the truth of that facet of things?
Do the Earth and its ecology – of which human beings are but one aspect -- have nothing to say about the issue of the correct distribution of goods and services? Do future generations have nothing to say about what might constitute the ‘correct’ distribution of goods, services and resources.
Does the Earth’s place in the universe have nothing to say about those sorts of issues? Are the realms of Being beyond humans – whatever these might be -- not deserving of justice in some sense?
Collectively speaking, we do not know the answer to any of the foregoing questions. Consequently, the idea that justice is about the correct distribution of goods seems rather arbitrary. In other words, that sort of a view of justice is not capable of being demonstrated, beyond a reasonable doubt, to be a perspective that is likely to be true.
Consequently, if ‘fairness’ is allegedly a matter of identifying the right way to bring about the right outcomes with respect to the distribution of resources, yet the nature of justice cannot necessarily be restricted to just certain kinds of material distribution outcomes but must first take into consideration the issue of trying to establish what the truth requires of us, then such a notion of fairness is problematic as well.
Justice and fairness, like morality and rights, are epistemological issues. Any attempt to make claims concerning those matters will be arbitrary to the extent those claims cannot be demonstrated as being likely to be true beyond a reasonable doubt.
Given the nature of our collective ignorance concerning those matters, talking about the ideas of justice and fairness as if we knew the truth concerning their relationship with one another seems premature. On the other hand, quite independently of the ultimate nature – if any -- of justice, finding some rational ways to act in the midst of this sort of ignorance might be a possibility worth exploring.
If the key to so many issues – for example, purpose, potential, morality, identity, and justice – is having access to the truth of those things, and, yet, if our current situation is permeated with many kinds of collective ignorance that bear on those same issues, then what is needed is a way to move forward which does not disadvantage anyone with respect to having an opportunity to push back the horizons of ignorance concerning, among other things, the aforementioned themes that are of critical importance with respect to having a chance to realize the potential of being human in a constructive fashion. Fairness within a context of ignorance is to recognize the right to sovereignty that emerges – via the law of ignorance -- from such a context in relation to the challenge of trying to push back the horizons of the unknown.
There is no guarantee concerning the likelihood of anyone discovering the truth of things. There is no guarantee concerning the likelihood of anyone discovering the nature – if any -- of ultimate justice.
Nevertheless, there needs to be a guarantee that everyone should have a fair opportunity to address those issues. This is what the right of basic sovereignty is about and without it all matters of law, justice, fairness, morality, and governance become arbitrary, and, therefore, cannot be justified beyond a reasonable doubt.
‘Hercules’ is the name given by Ronald Dworkin to an allegedly ideal lawyer or judge who makes legal decisions that are intended to serve – at least in generalized terms – as the standard of thinking against which legal arguments are to be evaluated with respect to how jurists should proceed in ‘hard cases’ … that is, legal cases requiring interpretation since the manner in which the primary and secondary rules of a legal system should be applied to a given set of social circumstances is not readily apparent. In short, Hercules is a rationalized fiction that gives expression to a model that allegedly provides a method that is intended to guide thinking with respect to engaging the ‘hard cases’ of law.
The style of argument to which Hercules is intended to give expression is complex, involving a variety of considerations. It involves principles of thinking concerning the application of legal rules (both primary and secondary) to social situations.
According to Dworkin, if a judge – say, Hercules – accepts the settled practices of the legal system within which he operates, then, such an individual must also accept some theory of political understanding that is capable of justifying those practices. Without some sort of underlying theory that is capable of justifying legal practice, then a judge could not possibly make sense either of current legal practice or how to legally proceed into the future in the matter of cases that constitute challenges for those sorts of established practices (i.e., hard cases).
The question that Hercules never seems to ask himself is: Why should one accept any legal practice as being settled? The fact that a group of people – judges for instance – consider a legal issue to be settled does not necessarily mean anything more than that a convention of some kind has arisen among a certain group of people in relation to a given issue of law.
Conventions are not self-justifying … although they might appear to be self-evident to those who accept those conventions. Consequently, given that the idea of being able to justify legal decisions in the matter of ‘hard cases’ is important to Dworkin, one wonders why the idea of being able to justify the underlying, ‘settled’ legal practices with which decisions concerning ‘hard cases’ are to fit does not seem to be equally – if not more -- important to Dworkin.
If there are problems inherent in settled legal practices, these sorts of difficulties cannot help but spill over into, and affect whatever decisions are made with respect to ‘hard cases’. To be concerned with the issue of justification in relation to arguments involving ‘hard cases without simultaneously being concerned with the issue of justification with respect to the framework into which decisions concerning hard cases are to fit seems rather inconsistent.
Who gets to determine if a legal practice is settled and with what justification? For example, who gets to determine who should adjudicate legal issues and in accordance with what methods?
If one responds to the foregoing question by claiming that a constitution settles those matters, this sort of a response does not necessarily resolve the issue. One must be able to justify – beyond a reasonable doubt -- the process through which such a constitution came into being if that document is not to be considered as an arbitrary set of arrangements instituted through the way of power rather than the way of sovereignty.
One also might respond to the foregoing question by arguing that: if ‘judges’ do not adjudicate legal issues, then who will? However, this sort of response will not necessarily solve the underlying issue either.
Who is to be identified – if anybody -- as the individuals to whom the responsibility for adjudicating legal cases is to be given stands in need of a kind of justification that transcends what is intended as a self-referential, rhetorical question. Possibly, the best individuals for adjudicating legal cases are not necessarily individual judges but a group of individuals in the form of grand juries or regular juries
In the legal system, one often hears that juries are the determiner of facts and judges are the determiners of the law. Nonetheless, one wonders about the nature of the argument that would be able to demonstrate, beyond a reasonable doubt, how juries have nothing of value to offer concerning the nature of law.
If self-governance is about individuals regulating themselves, then the role of judges in such a system of self-governance is not without elements of perplexing controversy. If judges are the ones who make decisions concerning the nature of self-governance, then to what extent can one say that individuals who aren’t judges are, nonetheless, actually involved in an exercise of self-governance?
‘Hercules’ is a judge who accepts certain aspects of legal practice as settled – such as who or what has the authority and power to enable judges to adjudicate legal matters. As a result, Hercules is already biased concerning various aspects of the structural character of the system out of which he operates … for instance, those features which empower judges to do what they do.
According to Dworkin, Hercules possesses a political theory that is capable of justifying those settled practices. However, what is the character of the justification for those practices – that is, why should anyone accept such a form of justification?
Hercules might have a political theory which justifies, in his own mind and in the minds of other judges, why certain legal practices are settled. This is not enough.
He must be able to justify to the generality of citizens why those practices should be considered settled and why judges should be permitted to adjudicate in hard cases that fall into the interstitial spaces in and around those settled practices.
For example, let us suppose that Hercules holds some theory of democracy which allegedly justifies both settled practices as well as the practice of judges making decisions in ‘hard cases.’ What is the structural character of that theory of democracy, and how does it justify what it claims to justify?
The foregoing theory might be coherent in terms of its own logical structure, and it might also be consistent in the sense that legal decisions across cases and across time give expression to the same set of legal connections (e.g., precedents) and modes of reasoning. Nevertheless, neither coherence not consistency are sufficient to demonstrate that the sort of theory of democracy being alluded to is necessarily capable of justifying itself to those who do not operate from within that sort of framework.
Something is justified when it can be shown to give expression to a form of argument that has persuasive properties beyond a single, self-referential context. The idea of inter-subjective agreement suggests that a variety of people from different contexts are able to come together in agreement on the value of a given argument and, to this extent, it constitutes a stronger – more justifiable -- form of argument than an argument which is not considered to be very persuasive or convincing beyond the group of people who are advocating that kind of theory or idea.
Hercules might hold a theory of political understanding that is interesting, coherent, consistent and capable of handling ‘hard cases’ in what is considered -- by ‘some’ of those who operate from within the framework of that understanding -- to be heuristically valuable in some sense. However, I would be more impressed if a variety of other individuals from contexts that are independent of Hercules were able to demonstrate, beyond a reasonable doubt, that his ideas were likely true in a multiplicity of separate contexts.
To accept various sorts of problematic (in the sense of not having been justified beyond a reasonable doubt) primary and secondary rules or legal practices as being settled and, then, seek, to judicially administer those laws fairly across a given population through the exercise of discretion in relation to ‘hard cases’ seems to be a project steeped in folly. However fairly those laws might be judicially administered, this sort of process seems to miss the obvious – perhaps those laws ought not to be administered at all … fairly or otherwise.
To poison everybody in a group is, in a sense, to have exercised fairness. Nonetheless, the quality of fairness cannot adequately address the issue of whether the people in that group should have been poisoned in the first place.
Imposing policies on a group of people without being able to demonstrate the likelihood that those policies are true beyond a reasonable doubt is like poisoning that group without first demonstrating that the act of poisoning those individuals is justifiable. The issue is not how fairly one has been in carrying out the policy in question, but, rather, the crux of the matter concerns the justifiability of the policy that is being carried out.
Similarly, the issue is not how smart Hercules is and whether, or not, he can come up with all manner of arguments concerning: coherency, consistency, fairness, political theories, the best moral sense, hard cases, or ideas about contracts and torts in the context of a given system of primary and secondary rules. The issue is whether, or not, that kind of a system of primary and secondary rules should be impacting the lives of people at all.
To make the best moral sense of a given system of primary and secondary rules – assuming one could do this -- says absolutely nothing about the justifiability of that system. To come up with a method for deciding hard cases in that sort of a system does not serve to justify such a framework but, instead, only gives expression to some of the logical possibilities inherent in any dynamic involving the interaction of those primary and secondary rules.
Dworkin employs the idea of a chain novel to help explicate his notion of how the discretionary/interpretive acts of judges ‘fit’ in with a given substantive framework of settled law. More specifically, Dworkin asks readers to imagine a literary project in which a number of authors collaborate to complete a novel by being assigned the task of writing individual chapters.
According to Dworkin, as the first chapter of the proposed novel is written, subsequent chapters will be constrained in certain ways by the elements which structure that opening chapter. For instance, considerations of: plot, language, geographical setting, temporal period, character names, and so on that are established in the first chapter must be carried over into subsequent chapters if one is to be able to make sense of the novel.
As is supposedly the case with respect to the foregoing, literary example, so too – or so the argument goes -- one observes the same sort of process in legal systems. Subsequent judges are constrained in certain ways by the structural elements and themes that have been established in previous chapters of the law by earlier judges.
However, there are some questions which might be raised with respect to Dworkin’s literary analogy … questions that have implications for the alleged analogical relationship between the writing of a novel and the exercise of judicial discretion. For example, whose decision was it for the idea of writing a novel to become the focus of such a project?
Why wasn’t a decision not made to write an epic poem of some kind rather than a novel? Or why not choose a musical or artistic form of collaboration rather than a literary one?
Furthermore, who decided, and with what justification, to select certain authors for the project rather than others? In addition, what justified one writer going first and setting the structural character of the novel for everyone else?
What if those writing later chapters were not happy with what the first writer had done? Why should they continue on with that kind of a project and what would prevent them from treating the opening chapter as nothing more than a preface, introduction, or merely a mysterious beginning point for a radically different set of events in subsequent chapters?
Is the novel meant to just give expression to a straightforward narrative of some sort, or could it be a mystery in which the reader is challenged to make sense of how – or if -- the chapters are related to one another? What if the initial writer was a realist of some sort, but the later writers were fantasists … or vice versa?
What if subsequent writers were much more interested in giving expression to dynamic, funny, interesting, poignant dialogue than they were in continuing on with some given plot and the like? What if subsequent writers were of the opinion that life had no plot, and, therefore, neither should the novel?
What obligation, if any, do subsequent writers have to: earlier writers, or to possible readers of the novel, or to the novel’s publisher, or to the individual or individuals who dreamed up the project in the first place? What justifies that kind of an obligation?
What if someone came along and asked why so much time and resources were being spent on that sort of literary project? Conceivably, such time and resources might be of more value if those who were in need of help were to become the beneficiaries of the time and resources that otherwise were going to be devoted to the novel project?
Finally, not much rests on what does, or doesn’t, happen with respect to the novel project. Whether the novel is: good or bad, makes sense or doesn’t make sense, is consistent or inconsistent, coherent or incoherent is largely irrelevant to the problems of life. However, if someone made a proclamation that people would have to live their lives in accordance with the ideas, rules, maxims, principles, purposes, theories, and values of the forthcoming novel, then all of the foregoing questions – along with many others -- become very relevant.
Dworkin never really explores the issue of whether, or not, his collaborative novel-writing project can be justified. Similarly, Dworkin never really explores whether, or not, his approach to law involving: primary and secondary rules, settled law, discretionary judgments, principles, making the best moral sense of such a system, as well as various ideas about justice, fairness, and integrity can be justified.
Dworkin believes that subsequent writers in the novel project will interpret what has gone on before them with respect to earlier chapters of the novel. Dworkin maintains that those interpretations will shape, in part, how any given chapter unfolds.
How does one demonstrate that those sorts of interpretations concerning earlier chapters are justified? What are the criteria for determining this? What are the methods for determining this? What if subsequent writers could care less about what earlier writers were up to or merely paid them lip-service as the subsequent writers went about constructing their own chapters which were intended to serve quite different purposes and intentions?
Furthermore, in many ways, the process of interpretation falls beyond the horizons of any given chapter. Even if a particular chapter of the novel were to lay out rules and principles for how it should be interpreted by writers of subsequent chapters, there is nothing in that sort of chapter which demonstrates why later writers should be obligated to accept those rules and principles of interpretation rather than question them or ignore them, and, therefore, the process of evaluating what has gone on before takes place in a hermeneutical space that is external -- although related -- to the actual novel itself.
The novel project does not justify the aforementioned interpretive process … although the novel might serve as one of the reasons for why that sort of process takes place. In other words, while the novel project might serve to stimulate some sort of interpretive activity, that project has no demonstrated authority for controlling the character of that interpretive activity in any justifiable fashion.
Given the foregoing considerations, one might ask similar questions with respect to the role that interpretation or discretion plays in the context of how a judge proceeds in relation to some given legal system. What does the interpretive process of one judge have to do with the interpretive process of another judge, and, more importantly, what logically links those interpretations in a way that generates obligations or duties in relation to either other judges or those who are not judges?
If one of the participants in the novel project were to write a chapter and expect that subsequent writers should not only follow her or his lead but, as well, feel obligated to do so, one might wonder about the arrogance and foolishness of that sort of a writer. Why is the issue any different when it comes to the matter of law?
According to Dworkin, the principle which ties together legal judgments and interpretations across circumstances and time is the principle of ‘integrity’. Whatever the philosophical and hermeneutical differences of judges might be, theys belong to a brotherhood and sisterhood in which they are honor-bound to attempt to make the best moral sense of a given set of primary and secondary rules when considered in the context of social/life problems.
If one applies the idea of ‘integrity’ to the issue of participating in the aforementioned novel project, then what is one to make of that principle? Presumably, the writers in the project are members of a guild of some sort who supposedly are obligated to try to make the best moral sense of the chapters written previously in the on-going novel project.
Why are the writers duty-bound to act in accordance with the foregoing sort of principle? Who is the duty owed to? – Themselves? -- The other writers? -- The person, or persons, responsible for that project? -- The publisher? – The critics? – The readers? – Academics?
Moreover, one wonders how the writers will address the issue of: What constitutes making the best moral sense of the novel project … ‘best’ in what sense, and according to what criteria, and in accordance with what justifications? … ‘moral’ in what sense, and according to what criteria, and in accordance with what justifications?
Even if one could answer the foregoing questions intelligibly and coherently, how does the fact that the writers who are participating in the novel project feel bound to one another through the principle of integrity, obligate, say, the readers of that novel to engage the finished, literary project with the same sort of ‘integrity’ as the writers did?
Just because a group of writers believe that they have exercised integrity, in some sense, across the various chapters of the project, why should readers feel bound to adhere to that sense of integrity? Possibly, despite the best efforts of the writers to observe the principle of integrity during the process of completing the novel project, their ideas about what constitutes the best moral sense concerning that project is misguided, or erroneous, or flawed in various ways. Maybe the novel that is produced in the foregoing fashion is not very interesting, satisfying, enjoyable, insightful, instructive, or just doesn’t have a lot of resonance -- and, therefore, traction -- with the sort of lives that are experienced by many readers.
Similarly, irrespective of how a group of judges might feel about the issue of integrity and how that principle supposedly relates to the exercise of discretion with respect to ‘hard cases’, what has any of this got to do with those who exist outside the community of integrity through which judges allegedly engage a given legal system of primary and secondary rules? Why should I, or anyone else, feel obligated to concede authority to judgments made in accordance with the principle of integrity as understood by judges? If I -- or others -- do not agree with what those judges consider to be the best moral sense that can be made of a given set of primary and secondary rules in the context of a given hard case, then although those judges might be acting in compliance with the requirements of their sense of integrity – we will assume -- how does any of this obligate me or others to follow along with the perspective of those judges?
One, of course, might respond to the foregoing questions with something along the lines of: Judges are acting in the best interests of people. Nonetheless, one might repost with: While judges might sincerely believe that they are acting in the best interests of people by exercising their understanding of integrity in relation to their discretionary judgments concerning ‘hard cases’, where is the proof – beyond a reasonable doubt – that such a system of legal hermeneutics actually is in the best interests of myself and others?
Dworkin believes that ‘integrity’, ‘fairness’ and ‘justice’ are all related to one another. If one is committed to any one of the three, then one must be committed to the other two as well, or one will not be able to make sense of the exercise of discretion/interpretation in ‘hard cases’ (that is, those cases which fall into the interstitial spaces in and around a given set of settled primary and secondary rules which must be resolved through the exercise of discretion) in a way that provides the best moral fit with such a set of rules.
One of the problems with the foregoing scenario is that all three of the foregoing ideas (integrity, fairness, and justice) are filled with ambiguities and unsettled themes. Consequently, the possible ways in which those ideas might interact with one another are also filled with issues that might only be capable of being resolved in arbitrary – and, therefore, unjustifiable – ways.
Another problem with the foregoing approach to legal theory is that while one might understand what ‘taking rights seriously’ means to Dworkin within such a context, nonetheless, I don’t think that Dworkin takes rights seriously enough. This is because he wants to fit his notion of rights into a framework of integrity, fairness, and justices that cannot justify itself, and, in the process, holds rights hostage to an allegedly settled set of primary and secondary rules that is not actually settled in any fundamental sense (and these sorts of issues were explored in chapters one through five of this book -- see below).
There is only kind of right that can be demonstrated as being established beyond a reasonable doubt and that is the form of basic sovereignty through which people are entitled to have a fair opportunity – in the expanded sense of fairness that was explored in the opening pages of the current chapter -- to push back the horizons of ignorance. Dworkin’s starting point denies this sort of a right because he wants to situate rights within the framework of a system of settled primary and secondary rules which authorize judges to exercise discretion to adjudicate hard cases without questioning whether any part of that system should be considered to be settled in any justifiable sense.
As an earlier blog entry indicated, The Philadelphia Constitution did not give rise to the rule of law in any non-arbitrary sense – that is, in a sense which can be shown to be justifiable beyond a reasonable doubt. As the second chapter of this book showed, the ratification process did not give rise to the rule of law in any non-arbitrary sense. As the third chapter of this book outlined, the diverse views of the Founders/Framers did not give rise to the rule of law in any non-arbitrary sense. As the fourth chapter of this book has intimated, Constitutional federalism did not give rise to the rule of law in any non-arbitrary sense. As the fifth chapter of this book has demonstrated, the way of power did not give rise to the rule of law in any non-arbitrary sense.
There is no non-arbitrary sense through which to understand the ‘rule of law’ concept unless that law is rooted in the way of sovereignty … a way that is established in accordance with the law of ignorance. Basic sovereignty is a right that precedes legal systems.
Basic sovereignty is a right that should shape the entire structural character of any legal system. The officers of governance – whether legislators, executives, jurists, or administrators – can only observe the requirements of the principle of integrity in Dworkin’s sense when they honor, protect, and enhance the basic sovereignty of every human being for whom they have such responsibility … and this includes future generations as well.