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Published online by Cambridge University Press: 13 January 2009
Prescriptive political and moral theories contain ideas about what human beings are like and about what, correspondingly, is good for them. Conceptions of human “nature” and corresponding human good enter into normative argument by way of support and justification. Of course, it is logically open for the ratiocinative traffic to run the other way. Strongly held convictions about the rightness or wrongness, goodness or badness, of certain social institutions or practices may help condition and shape one's responses to one or another set of propositions about what people are like and what, in consequence, they have reason to value.
1 Unger, Roberto, The Critical Legal Studies Movement (Cambridge: Harvard University Press, 1986), p. 105.Google Scholar
4 See Unger, Roberto, False Necessity (Cambridge: Cambridge University Press, 1987), pp. 452–53.Google Scholar
5 See, for example, Unger, Critical Legal Studies Movement, pp. 22–23, 94. See also Unger, Roberto, Passion: An Essay on Personality (New York: Free Press, 1984), p. viiGoogle Scholar, where Unger advises that he aims to reconceive and reconstruct the ancient and universal practice of attributing normative force to conceptions of personality or society so that this practice can better withstand the criticisms that philosophy since Hume or Kant has leveled against it.
6 Unger, Critical Legal Studies Movement, p. 23.
8 See, for example, ibid., p. 26. In Passion, pp. 88–89, Unger gives two reasons for working toward “a … way of living in the present … as people not wholly defined by the current forms of their existence.” These reasons are, “first, because this is the kind of being we really are and, second, because by living in this fashion we empower ourselves individually and collectively.” Unger then adds that the two reasons really reduce to one: “they state the same thesis under different names.”
9 See, for example, Stone, Martin, “The Placement of Politics in Roberto Unger's Politics,” in Law and the Order of Culture, ed. Robert, Post (Berkeley: University of California Press, 1991), pp. 78–108Google Scholar; Sunstein, Cass, “Routine and Revolution,” Northwestern University Law Review, vol. 81 (1987), pp. 869–93Google Scholar, esp. pp. 881–93.
10 See, for example Sunstein, “Routine and Revolution.”
11 See, for example, Kennedy, Duncan, “A Cultural Pluralist Case For Affirmative Action in Legal Academia,” Duke Law Journal, vol. 1990, pp. 705–57CrossRefGoogle Scholar, esp. pp. 743–46.
12 Unger's view here resembles Michael Sandel's view of agency as dependent on the “situated” character of the self. See Sandel, Michael, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1973), pp. 152–73.Google Scholar As James Boyle says:
In the place of … total denial [of limits], Unger offers us a chastened brand of modernism — one that accepts the inevitability (and even the desirability) of the limitations imposed by the cultural context in which one is embedded, yet insists nonetheless on the possibility of self-realization, the assertion of the infinite within the confines of the finite.
Boyle, James, “Modernist Social Theory: Roberto Unger's Passion” (Book Review), Harvard Law Review, vol. 98 (1985), p. 1079.CrossRefGoogle Scholar
13 Altman, Andrew, Critical Legal Studies: A Liberal Critique (Princeton: Princeton University Press, 1990), p. 170.Google Scholar
14 Sunstein, “Routine and Revolution,” pp. 869–93. I choose this example in part because, among critiques of Unger's vision proceeding from a stance that is closer than Unger's to a conventional, liberal appreciation of legal ordering, Sunstein's critique exceptionally keeps its own distance from the conventional view, and contains its own sophisticated appraisal of that view's vices and virtues.
23 Not every self-contained piece of normative argumentation exhibits this form. A given piece of moral argumentation, for example, may confine itself to analysis and elaboration of socio-ethical data consisting of moral vocabularies and intuitions. Such argumentation is not, as far as it goes, naturalistic in form, and I do not here inquire whether it must depend on unspoken naturalistic premises for whatever prescriptive force it may exert. I do take up below some arguments of prescriptive jurisprudence that analogously proceed by analysis and elaboration of the concept of law as it occurs in ordinary legal thought, and I do suggest that these arguments always implicitly appeal to unspoken naturalistic premises.
24 I choose the vague term “correlation” in order to avoid binding my account of naturalistic moral argument to causal linkages between acts, institutions, etc., on the one hand, and human-state contingencies on the other. I want language that allows us to classify (say) “being involved in affectionate relationships” or “acting autonomously” as states of human beings that may or may not occur, and further allows us to propose that institutions such as the family or a libertarian political constitution “correlate” with occurrences of such states, without having to sort out the senses (if any) in which the institutions may be said to cause the occurrences.
25 I mean to include both “would be rationally chosen by” us in any circumstances imaginable, given our constitutive attributes, and “would be rationally chosen by” us, given our constitutive attributes, in hypothetically specified circumstances (an “original position”).
26 For Unger's analogous gestures, see supra notes 5 and 8.
27 Understanding always that “right-for” may be defined in terms of “good-for.” Human critics of naturalistic argument — that is, of such argument's allegedly outrageous elision of the gap between facts and values — may well see the choice of a content for the RF relation (“preserves the life of,” “fulfills the excellence of,” etc.) as the point where naturalistic argument levitates itself across the gap. As James Boyle explains the Humean critique, “an opponent of one's theory can [always] claim that it links … description to political prescription by means of an arbitrary assumption.” See James Boyle, “Modernist Social Theory,” p. 1072. Evidently, the arbitrary assumption Boyle has in mind is the choice of content for RF. He makes this explicit in his comment on Unger's two linked reasons for cultivating negative capability in our lives (namely, this corresponds with how “we really are,” and this is how “we empower ourselves”; see supra note 8): “I do not object,” says Boyle, “to the conjunction of these [two] reasons, but when Unger [adds] … that both of them ‘state the same thesis under different names’ … it becomes hard to differentiate his argument from the Aristotelian one” that Hume skewered.
28 Hobbes, Thomas, Leviathan: On the Matter, Forme and Power of a Commonwealth Ecclesiastical and Civil (New York: Collier Books, 1962), pp. 21–128.Google Scholar
29 See, for example, Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971), p. 240Google Scholar; Mensch, Elizabeth and Freeman, Alan, “A Republican Agenda for Hobbesian America?” University of Florida Law Review, vol. 41 (1989), pp. 581–600.Google Scholar
30 That is, disconsonance between currently held beliefs at either end of the logical traffic may motivate a process of reflective equilibration. See Rawls, A Theory of Justice, pp. 48–51.
31 Gauthier, David, “Taming Leviathan,” Philosophy and Public Affairs, vol. 16 (1987), pp. 280–98.Google Scholar Michael Sandel's Liberalism and the Limits of Justice provides another choice example. It is because of the two-way flow of the traffic between high-level institutional prescription and low-level attributions to human nature that Sandel can comfortably, in one and the same work, both (1) argue against John Rawls that an alleged mistake of philosophic anthropology (conceiving the self as radically “unencumbered” or prior to its ends rather than as constitutively “situated”) undermines the conception of justice as the priority of the right over the good (see ibid., pp. 7–59); and (2) argue against Ronald Dworkin (in the reverse direction) that Dworkin's concrete stance in favor of race-conscious affirmative action logically commits him to a communication as opposed to a Kantian-individualist conception of the self (see ibid., pp. 135–47). Compare Rorty, Richard, “Habermas and Lyotard on Post modernity,” in Essays on Heidegger and Others (Cambridge: Cambridge University Press, 1991), p. 165Google Scholar: “[W]e find French critics of Habermas ready to abandon liberal politics in order to avoid universalistic philosophy, and Habermas trying to hang on to universalistic philosophy … in order to support liberal politics.” Rorty's essay criticizes this tendency to think that espousal of a “politics” commits one to a “philosophy” and vice versa.
32 Gauthier, “Taming Leviathan,” p. 287 (emphasis added).
33 See ibid., pp. 285, 297–98: “[A]n alienation contract [resting on rule egoism] would be each person's best option [only if] … the psychology of Hobbesian persons were to permit it.… But … the best rule for a rule egoist to adopt may require her to be sincerely nonegoistic in some circumstances.”
34 I adapt the term “object-level” from Thomson, Judith Jarvis, The Realm of Rights (Cambridge: Harvard University Press, 1990), p. 30.Google Scholar
35 See, for example, Fried, Charles, “The Artificial Reason of the Law or What Lawyers Know,” Texas Law Review, vol. 60 (1981).Google Scholar
36 See, for example, Cruzan v. Missouri Dept. of Health, 110 S. Ct. 2841, 2859, 2863 (1990) (Scalia, J., concurring).
37 See Radin, Margaret Jane and Michelman, Frank, “Pragmatist and Poststructuralist Critical Legal Practice,” University of Pennsylvania Law Review, vol. 189 (1991), pp. 1019–58.CrossRefGoogle Scholar
38 See, for example, Richards, David, Toleration and the Constitution (Oxford: Oxford University Press, 1986).Google Scholar
39 See, for example, Bork, Robert, “Neutral Principles and Some First Amendment Problems,” Indiana Law Journal, vol. 47 (1971), pp. 1–35.Google Scholar
40 See, for example, Hayek, Friedrich, The Fatal Conceit (Chicago: Chicago University Press, 1988)CrossRefGoogle Scholar, ch. 1; Hayek, , “Epilogue: The Three Sources of Human Values,” in Law, Legislation, and Liberty: The Political Order of a Free Society (Chicago: Chicago University Press, 1979), pp. 153–76.Google Scholar
41 For an example of what such an essay might be like, see Macintyre, Alasdair, After Virtue (Notre Dame: Notre Dame University Press, 1981), pp. 190–209.Google Scholar
42 As I use the term “rule” in this discussion, a rule may consist of several principles and standards, as long as a competent lawyer, judging in good faith, can experience their combination as compelling a determinate decision. See Kennedy, Duncan, “Freedom and Constraint in Adjudication: A Critical Phenomenology,” Journal of Legal Education, vol. 36 (1986), pp. 518–62.Google Scholar
43 See Dworking, Ronald, Law's Empire (Cambridge: Harvard University Press, 1986), pp. 151–67.Google Scholar
44 See, for example, Bork, “First Amendment Problems” compare Michael H. v. Gerald D., 109 S. Ct. 2333, 2344 n. 6 (1989) (Scalia, J.).
45 See, for example, Radin, Margaret Jane, “Reconsidering the Rule of Law,” Boston University Law Review, vol. 69 (1989), pp. 781–819Google Scholar, esp. pp. 787–89.
46 By contrast, the commonality adduced by Judith Jarvis Thomson as a “source” of our having claims — the fact (accepting that it is a fact) that human beings are creatures whose interests are “inherently individual” — seems quite robust enough to contribute support or explanation for a notion of unitary and constraining law. See Thomson, The Realm of Rights, pp. 218–23, discussed below.
I do not here consider whether the ordinary idea of law as constraint allows for a human commonality that we construct by our very acts of law-creation and participation in legal culture. See, for example, Fraser, Andrew, The Spirit of the Laws: Republicanism and the Unfinished Project of Modernity (Toronto: University of Toronto Press, 1990), pp. 284–87Google Scholar; Gordon, Robert, “New Developments in Legal Theory,” in The Politics of Law: A Progressive Critique, ed. David, Kairys (New York: Pantheon Books, 1990), pp. 413–25Google Scholar, esp. pp. 418–21. The question is whether positing that human commonality is completely constructed by — and purely reflexive with — legal culture contradicts law's otherness vis-à-vis human agency, law's attribute of constraint or resistance.
47 As James Boyle puts it, in Unger's argument “the only noncontingent phenomenon is contingency itself, and ‘infinite personality’ appears to be contingency clad in the robes of human nature.” See Boyle, “Modernist Social Theory,” pp. 1069–70.
48 The characterization is David Mapel's. See Mapel, , “Civil Association and the Idea of Contingency,” Political Theory, vol. 18 (1990), p. 393.CrossRefGoogle Scholar
49 Thus, Unger develops a normative theory of human passions as containing and expressing — “ring[ing] the changes on” — “the relations between our reciprocal and infinite longing for one another and our reciprocal and infinite terror.” See Unger, Passion, p. 100.
50 James Boyle, having remarked that, in Unger's argument, “the concept of infinite personality seems to allow us to skirt relativism,” adds that the argument would also skirt contentlessness if it could succeed in deriving from a pure, unadulterated notion of human personal infinitude a normative theory of intersubjective relations and an attendant theory of human passions. Boyle denies that any such derivation is possible as a matter of logic. See Boyle, “Modernist Social Theory,” p. 1073. At the same time, though, he also urges that Unger's linkage of politics to personality can nevertheless work if we take it as an appeal not to logic but experience — “a dispatch from the front and not a treatise on war.” See ibid., pp. 1075–76, 1080–83.
51 See Thomson, The Realm of Rights, pp. 212–24, discussed below.
53 “X's having a claim against Y that such and such be the case consists, centrally, in its being the case that other things being equal Y ought not to let such and such fail to be the case.” Ibid., p. 214.
54 Thomson presents some, but not nearly all, such judgments as necessary truths, statements of what simply cannot fail to be the case. For example, given what pain is,
Other things being equal, one ought not to cause others pain.
is both a moral datum and a necessary truth. See ibid., p. 18.
57 In what Thomson seems to propose as their standard form (see ibid., p. 30), these are two-clause conjuncts in which the first clause is the moral judgment we are concerned at the moment to explain or support, which Thomson calls an “object-level moral judgment,” and the second embeds a moral judgment providing a major premise for an argument yielding the first. For example (see ibid.):
Capital punishment is wrong because it is intentional killing of those who pose no threat to others.
is an explanatory moral judgment relative to the object-level moral judgment,
Capital punishment is wrong.
58 See ibid., p. 31. The major premise embedded in the second (explicans) clause of an explanatory moral judgment — in our example in note 57, it would be “intentional killing of those who pose no threat to others is wrong” — is itself also waiting its turn to be focalized as an object-level moral judgment and explicandum.
59 Ibid., p. 212. Thomson distinguished between two classes of extramoral sources, which we may call conventional and natural. A conventional source of our having claims would be the fact that we were given them by acts of promising or lawmaking. But, Thomson says, there are claims, such as the claim that others not intrude on our bodies, that we have regardless of there having been any such acts. No conventional source could possibly explain our having claims of that sort. Thomson very plausibly says that any source of such trans-conventional claims — in effect, natural human rights — has to consist in some fact, or facts, of human nature.
62 “What I have in mind is a Kantian idea, and surely a very plausible one, that the capacity to conform your conduct to moral law is a necessary and sufficient condition for the moral law to apply to you.” Ibid., p. 215.
63 The subscript is not a typographical error. It will play a part in the following discussion.
64 Such ideas are rampant in modern jurisprudence. For Max Weber, for example, the derivability of specific prescriptive content from a formally unitizable set of preestablished general principles is (among other things) an expression of capitalist bureaucratic rationality. See, for example, Kronman, Anthony, Max Weber (London: Edward Arnold, 1983), pp. 118–46.Google Scholar For Lon Fuller, the ideal of the rule of law corresponds to an “internal morality of law” that commends itself to any ruler aspiring to rule efficaciously. See, for example, Fuller, Lon, The Morality of Law (New Haven: Yale University Press, 1969), pp. 33–94.Google Scholar
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