John Gardner interviewed by Richard Marshall. 3:AM Magazine.
John Gardner is a big beast of legal philosophy who takes the label ‘legal positivism’ mainly to problematize it, who thinks deeply about the ‘chicken and egg’ puzzle, who finds Dworkin’s idea of constructive interpretation bewitching but mistaken, who thinks it’s misconceived to think judges can only be constrained by rules in their decisions if the rules pre-exist the decisions, who has much to say about the role of customary rules, who asks whether there can be a written constitution, who defends the Razian thesis that the law makes moral claims and reconciles it with the possibility of immoral laws, who writes about law as a leap of faith and connects Kelsen with Kierkegaard and says rape is wrong as sheer use of person. Who loves ya baby?
3:AM: What made you become a philosopher? And why legal philosophy?
John Gardner: I started by studying law, which is an undergraduate subject in the UK. I was lucky enough to study law in the intellectually liberal environment of Oxford, where my tutors encouraged wide-ranging critical reflection and took a dim view of rote learning (except as a necessary evil come exam time). I think Nicola Lacey was the person who gave me the initial support I needed to develop serious philosophical interests. As well as teaching me philosophy of law in the most inspiring way, she sent me to Jonathan Glover for moral philosophy tutorials. Jonathan in turn knew just how to deal with the knee-jerk value-scepticism of a 19-year-old know-it-all law student. He tormented me with the nihilistic implications of my views until I couldn’t take it any longer. I have been an in-your-face moral realist ever since. One more success for aversion therapy.
At that point I was still pretty sure that I was going to end up practising law. So I took the view that I should study as much philosophy as possible while I still had the time and the access. As a masters’ student in the Oxford Law Faculty of the mid-1980s, studying for a degree so highly prized in the English legal profession that nobody would care what I actually learnt, I was lucky enough to be able to develop my philosophical interests and skills in some more advanced philosophy-of-law courses laid on by Joseph Raz, John Finnis, and Ronald Dworkin. I also attended in a more recreational way (I was such a geek) the seminars of Amartya Sen, Jerry Cohen, Derek Parfit, Steven Lukes, David Miller, and many other local philosophical luminaries. The seminars jointly held by Sen, Cohen, Dworkin, and Parfit were known among the students as ‘Star Wars’ – that name helps to capture both the mood of the meetings and the spirit of the age in which they took place.
I was irreversibly contaminated by all of this and when I headed off to London to qualify as a barrister the following year, my heart wasn’t in it. I soon contrived to get back to Oxford for a doctoral degree. I was helped in doing this by the fact that I had meanwhile won, as it seemed to me by lottery, a ‘Prize Fellowship’ at All Souls College. This gave me decent funding and fascinating colleagues. The indefatigable Tony Honoré, with whom I still teach to this day, was my college mentor and my thesis supervisor. Later, on Honoré’s retirement from official duties, Parfit took over the former role and Raz the latter. My thesis was about moral and legal responsibility. It was all over the place. Bad for my progress with the degree, but good for my philosophical education. My examiners (Bernard Williams and Antony Duff) smiled on the resulting artefact and let me out into the world as a moral and legal philosopher.
It’s just occurred to me that maybe you didn’t want the story of who I worked with, how I was funded, what I was occupied with before I became a philosopher, and all that David Copperfield kind of crap. Maybe you wanted to hear about the philosophical puzzles that kept me awake at night and the ideas that inspired me. Alas, I forget. I only know that there were a lot of them, and that I had a massively exaggerated sense of how many of them I could tackle and how quickly.
3:AM: You’re a legal positivist aren’t you? You wrote a famous paper about it – 5 1/2 Myths . What’s at stake?
JG: For people who like that kind of label, that is the kind of label they like. I help myself to it mainly to problematize it, and to some extent to poke fun at it. ‘ 5½ Myths ’ was a pedagogical exercise. I noticed that my students associated ‘legal positivism’ with all sorts of only very loosely connected propositions. I also saw that articles in the law journals often treated ‘legal positivism’ as an all-purpose bogeyman. I didn’t care and still don’t care who is a legal positivist and what assortments of things people who are called by that name happen to believe. But I did care, and still care, about the sloppy herding together of a number of only very loosely connected propositions to create an all-purpose bogeyman. So in ‘ 5½ Myths ’ I set about what I later came to call the ‘unbundling’ of the propositions in question. Along the way I endorsed what I identified as the core teaching of the legal positivist tradition and hence what I called, for the purposes of the paper, the ‘legal positivist thesis’ or ‘LP’. This is the thesis that law is made by people. In any legal system, the law of the system is what the relevant people made, never mind whether that is the law they ought to have made.
What is at stake? A lot. ‘ 5½ Myths ’ sets out to show that there are many implications that LP does not have, and many puzzles, therefore, that it does not throw up. But there are of course many other puzzles that it does indeed throw up. Here is one. Once we endorse LP we will need an account of what makes an person a ‘relevant’ one, or, in the terminology favoured by H.L.A. Hart, an account of how one might qualify as a ‘legal official’. One of the great puzzles of legal philosophy, which LP foregrounds, is what Scott Shapiro calls the ‘chicken and egg’ puzzle. Legal officials make law, says LP. But law also makes legal officials. How is it possible for law to make its own makers? Hart had an answer, which I think is broadly right. (Shapiro has a rival one, which I think is broadly wrong.) Hart’s key move, in my view, is to recognise that not all law is made by the relevant people’s attempts to make it. Often law is made by accident, including by people who are trying only to follow or apply law that they take to exist already. If they are the relevant people they can sometimes change the law by misunderstanding it. From this one can build a picture of how they come to be the relevant people. They become the relevant people by treating each other, mistakenly, as already being the relevant people. It is a collective and accidental form of self-appointment. Hart called the gradually mutating customary norm by which officials recognise each other as officials (and hence become the officials of a system of norms in which they are so recognised) the ‘ultimate rule of recognition’ of a legal system and he claimed, I think rightly, that every legal system necessarily has at least one of them. (He sometimes said ‘one and only one’, but that was in my view a slip.)
The chicken-and-egg puzzle is just one of many puzzles that are thrown up by LP. Many people interested in the law think such puzzles are mere diversions, like Sudoku. After a recent lecture she gave at Boston College, my former tutor Nicola Lacey nicely raised some very wide-ranging doubts about LP and propositions like it (namely, those which are supposed to be necessarily true of all legal systems). She wondered out loud : ‘Is it just philosophy? In which case, how do I explain to my students that they should be interested in it, except as a very fascinating intellectual game?’ My experience is that if people don’t have philosophical interests, there isn’t much to be gained by trying to sell philosophy to them as ‘relevant’ to something else that they are interested in. The same is true of history, maths, astronomy, and other intellectual pursuits. Either they grip you or they don’t. Nevertheless, as someone who does have philosophical interests, I find that my views about the nature of law have many repercussions in other parts of my work.
To give just two examples. The view that I defend in chapter 5 of my book Law as a Leap of Faith (2012), according to which law makes moral claims, is the key to understanding why and how the problem of moral luck comes up in the law. I showed the connection in a paper called ‘ Obligations and Outcomes in the Law of Torts ’ (2001), And the view I align myself with in ‘ 5½ Myths ’ (chapter 2 of the same book), according to which the legal invocation of moral standards does not turn those standards into legal standards, turns out to be central to understanding the workings of many criminal law defences. I explained how the two are connected in a paper called ‘ Justification under Authority ’ (2010). People who are not interested in philosophical inquiry into the nature of law may not be very interested in philosophical inquiry into these specific areas of legal doctrine either. But there is no doubt that the general and the specific are closely connected at many points. As I put the point in Law as a Leap of Faith , chapter 11: If there is no general jurisprudence, then there is also no special jurisprudence (e.g. philosophy of criminal law or philosophy of private law).
3:AM: Given that you oppose ‘package deal approaches’ to legal philosophy that get to grips with issues by setting up positions in adversarial terms – such as ‘Hart vs Dworkin’ or ‘Legal positivism vs Natural Law’, what alternatives are you ruling out with Legal Positivism?
JG: The main rival view I am ruling out is that, in at least some legal systems, the law is not straightforwardly made by people. On this view, what counts as law can depend, at least in part, on its merits – moral or otherwise.
This rival view has enduring appeal and various aspects of legal life combine to lend credibility to it. The one I will mention here is the prevalence of judicial interpretation, which is often conducted, at least nowadays, on the footing that judges should read a legal text as succeeding in doing the valuable things that it was designed to do (sometimes known as ‘purposive’ interpretation). In Law’s Empire , Dworkin brilliantly recasts purposive interpretation as a species of a larger genus that he calls ‘constructive’ interpretation. If a legal text sometimes means what it would be better for it to mean by some standard, argues Dworkin, then it cannot be the case that the content of the law is whatever content the authors of the text gave it. They did not have the power to make law, the content of which is worse than it would be better for it to be by the relevant standard. This is a bewitching idea. But it trades on the mistaken view that interpreting a legal text is finding meaning that it already has at the point at which it is presented for interpretation. In fact, judicial interpretation may give new meaning to a legal text – hence new content to the law – and may do so on moral grounds. When that happens the legal text has whatever new meaning the judges now give it thanks to their new interpretation of it. That they give it that new meaning on moral grounds does not alter the fact that its meaning is the meaning that they now give it, never mind whether that is the meaning they ought to have given it. Which is what LP says.
No package deals in sight here! Plenty of other things that Dworkin says are right. He is absolutely right to commend constructive interpretation if by that he simply means that judges should interpret legal texts with an eye to making the law that they contain morally better than it would be on other interpretations.
3:AM: Is it because Ronald Dworkin doesn’t acknowledge that customary laws and case laws are man-made that you disagree with him?
JG: I can’t recall what might at first have motivated my disagreements with Dworkin. It is true, however, that part of the original impetus for Dworkin to introduce principles (which he claims to be LP-inconsistent legal norms) into his analysis of the nature of law was to explain features of legal reasoning that I prefer to explain in LP-consistent ways. I have already mentioned customary law so let me say a word about case law. And I have already mentioned Dworkin’s 1986 work on interpretation, so let me reach back to his earlier conceptualisation of his position in terms of ‘legal principles’.
Dworkin’s original argument has something like the following shape. (1) Judges who are faced with what he called ‘hard cases’ have to find a moral justification for what they already regard as law, and they apply that moral justification to resolve the ‘hard case’. (2) When they do so, they do not reach outside the law. So (3) some law is supplied (its content determined) by the moral justification for it. There are three claims here. I have some quarrels with the first and the third. But the relevant quarrel here is with the second claim.
Why should we think that judges who identify these principles are not reaching outside the law? Dworkin gives several reasons. Some are wildly question-begging (e.g. that if judges were reaching outside the law, that would be bad.) But a reason that law students often find attractive is that judges who reach for these principles almost always talk as if they are only applying the law and not changing it. Judges often say that the ‘hard case’ before them is already covered by the law and calls for no legal innovation. One possible response to that fact: Well, judges would say that, wouldn’t they? They have every reason to fib about what they are doing, given that there are so many people like Dworkin who wrongly think that judges’ reaching outside the law would be bad. But one need not accuse judges of fibbing in order to understand what is going on in an LP-consistent way. One can point out that legal changes can be made accidentally by judges who reasonably but mistakenly imagine that they are only applying and not changing the law by their decisions. That is why they say they are only applying and not changing the law by their decisions.
3:AM: Do judges rely on rules, or do they just make a decision that is much looser than rule following. Didn’t Richard Posner suggest something like this, that the law is more untethered than is supposed? Isn’t this how opponents to positivism criticize the position, that if law is just man-made it is arbitrary?
JG: A common view is that judges can only be constrained by rules in their decisions if the rules pre-exist the decisions. This is a misconception. There are (at least) two different ways in which decision-makers can be constrained by rules. First, they can be bound to apply an existing rule in making a given decision. Second, they can be bound to explain or show what the reasons for their decision are in such a way that those reasons are capable of being understood and used as a rule from then on. The first constraint, when it applies, distinguishes judges from legislators. But it often does not apply, either because there is no existing rule or because the judge is not bound by the existing rule. That is when the second constraint comes into its own. It is what distinguishes judges from arbitrators. Arbitrators need not bring their decisions under rules, even under new rules. Judges, however, are bound to do so.
‘Arbitrary’ is sometimes used as a pejorative term meaning something like ‘capricious’ or ‘on a whim’. But arbitrators are paid to arbitrate, and in that sense to be arbitrary. This does not mean they act on a whim, still less that it is alright for them to do so. Like judges, legislators, and other makers of morally significant decisions, they should make their decision on the strength of adequate reasons. What ‘arbitrary’ means (applied to arbitrators) is simply that the adequate reasons need not be organised into a rule that is capable of being used by future arbitrators to decide further cases. Each case can be arbitrated, as it is sometimes said, ‘on the facts’. Not so in a court of law. A judge in a court of law, to repeat, is bound to organise her reasons for decision into a legal rule. That is what tethers her even when it is up to her to determine what the legal rule in question is going to be.
Dworkin made much of the fact that judges use principles as well as rules. The remarks I just made assume that principles are also rules, albeit possibly more abstract ones or less fully-formed ones or less decisive ones. Actually, I don’t really mind whether we speak of principles or rules here. So in a more Dworkinian idiom I would be happy to say: Judges, unlike arbitrators, are constrained by the fact that they must explain or show what legal principle (either existing or created for the purpose by them) underpins their decision.
Do opponents of LP really say that ‘if law is just man-made it is arbitrary’? I have not encountered that particular criticism. It is clearly fallacious. It confuses the question of what qualifies as law (LP says: only man-made norms) with the question of whether the makers of a particular law or body of law had enough reason to make it. As I have just explained, LP allows one to insist on the highest rational standards for intentional law-makers to follow. All it adds is that, if the law-makers fail to live up to those standards, unfortunately one still ends up with law (to be precise, yet more crappy law).
I have a feeling that I may have been repeating myself a bit, making the same point in several ways. The point is that many people are rightly interested in how judges set about making law, which is often by argument about the merits of the law they are making. But it is also possible to be interested in why what judges make counts as law. The LP-compliant answer is that it counts as law in virtue of its having been made by the right kind of person, and irrespective not only of its merits as law but also of the merits of any argument that went into making it.
Have I made that point that in enough different ways now?