Politics in a State of Nature

Aristotle thought we are by nature political animals, but the state‐of‐nature tradition sees political society not as natural but as an artifice. For this tradition, political society can usefully be conceived as emerging from a pre‐political state of nature by the exercise of innate normative powers. Those powers, together with the rest of our native normative endowment, both make possible the construction of the state, and place sharp limits on the state's just powers and prerogatives. A state‐of‐nature theory has three components. One is an account of the native normative endowment, or “NNE.” Two is an account of how the state is constructed using the tools included in the NNE. Three is an account of the state's resulting normative endowment, which includes a (purported) moral power to impose duties of obedience. State‐of‐nature theories disagree about the NNE. For Locke, it included a “natural executive right” to punish wrongdoing. Recent social scientific findings suggest a quite different NNE. Contrary to Locke, people do not behave in experimental settings as one would predict if they possessed a “natural executive right” to punish wrongdoing. Moral reproof is subject to standing norms. These norms limit the range of eligible reprovers. The social science can support two claims. One, is that the NNE is (as Aristotle held) already political. The other is that political authority can be re‐conceived as a matter of standing—that is, as the state's unique moral permission coercively to enforce moral norms, rather than as a moral power to impose freestanding duties of obedience.     

The Idea of “Free Public Reason”

Abstract. In this paper the nature and the role of Rawls's idea of a “free public reason” are examined with an emphasis on the divide between the private and the public spheres, a divide which is the hallmark of a liberal democracy. Criticisms from both the so-called Continental tradition and the Communitarian opponents to liberalism insist on the ineffectiveness of such a conception, on its inability to establish a political consensus on democracy. But it would be a mistake to see a contractarian theory of justice, such as Rawls's justice as fairness, as grounding the social contract in a public use of reason. Such a contract would indeed be susceptible to endless conflicts and renegotiations and would never achieve consensus. Therefore, a distinction must be made between the values of justice that are present in and through the “original” contractual position and the that regulate the public sphere and guarantee its stability.     

From Public Sociology to Public Philosophy: Lessons for Law and Society

The late Philip Selznick's final book, A Humanist Science, examines the role of values and ideals in the social sciences, including the study of law and society. Throughout his academic career, Selznick was committed to what he called “legal naturalism,” a sociological version of the natural-law perspective, while his critics continue to adhere to various forms of positivism. But the age-old opposition between natural law and legal positivism today may be giving way to the quest for public sociology—a sociology that promotes public reflection on significant social issues and thus functions as a moral and political force. A Humanist Science ends with a strong plea for public philosophy. Public philosophy overlaps with public sociology but is a much stronger concept. Selznick's message of public philosophy may be another of his enduring contributions to the field of law and society.     

“Critical Legal Histories Revisited”: A Response

The author responds to comments reappraising “Critical Legal Histories” (CLH) (1984). CLH critiqued “evolutionary functionalism,” the idea that law is a functional response to a typical modernizing process. CLH argued that “society” was partly constituted of legal elements and that law was too indeterminate to have reliably regular functional effects. CLH has been misinterpreted as calling for a return to internal histories of “mandarin” doctrine: all it said was that some doctrinal histories were valuable, without privileging them. This response clarifies that the relations of law to society and social change, and of high‐level official law to everyday local law are distinct issues. CLH is mostly moot today, since social‐legal historians have incorporated its insight that legal concepts are embedded in everyday social practice. But other fields have revived deterministic Whiggish accounts of progressive development and of law functional to it—to which CLH's critique still seems relevant.     

A Commentary on Victimization Research and the Importance of Meaning Structures

This article examines the largely atheoretical tradition of victimization research and some of the unintended consequences of work in the area. In using a legalistic definition of crime, victimization research has failed to incorporate the public's definition of crime and victimization. While “street” and property crime have a decided impact upon people's lives, the consequences of real or alleged corporate and political crimes also affect people's concep-tions of their lives. The authors outline the beginnings of a theoretically apposite reinterpretation of perceptual victimlogy findings and related methodological concerns, and suggest ways that social scientists can become actively involved in the debunk-ing of the “crime wave” mentality perpetuated through the media by providing alternate interpretations of crime statistics.     

What’s Wrong with Penal Populism? Politics,the Public,and Criminological Expertise

This article discusses “penal populism” and its conflict with criminological expertise. It considers the proper balance between professional expertise and community sentiment in the formulation of crime control and penal policy—especially in respect of policy measures where moral rather than instrumental considerations are involved. It raises theoretical questions about the nature of “public opinion”—does it exist other than as an artifact of survey instruments?—and its proper role in a democratic polity. And it considers the professional responsibility of criminological experts in relation to policy formation and political debate. The performance of public health experts during the COVID pandemic is presented as an instructive case in point. Can criminology establish itself as a credible form of social scientific knowledge worthy of public trust? And how should criminologists comport themselves when engaging with questions of public policy and political controversy?

     

Covering Legal Mobilization: A Bottom‐Up Analysis of Wards Cove v. Atonio

We develop a political history of Wards Cove v. Atonio (1989) to show how Robert Cover's concepts of jurisgenesis and jurispathy can enrich the legal mobilization framework for understanding law and social change. We illustrate the value of the hybrid theory by recovering the Wards Cove workers’ own understanding of the role of litigation in their struggle for workplace rights. The cannery worker plaintiffs exemplified Cover's dual logic by articulating aspirational narratives of social justice and by critically rebuking the Supreme Court's ruling as the “death throe” for progressive minority workers’ rights advocacy. The cannery workers’ story also highlights the importance of integrating legal mobilization scholars’ focus on extrajudicial political engagement into Cover's judge‐centered analysis. Our aim is to forge a theoretical bridge between Cover's provocative arguments about law and the analytical tradition of social science scholarship on the politics of legal mobilization.     

Agency,Authority, and the Logic of Mutual Recognition

The “Cartesian” model of the rational subject is central to the political philosophy of Hobbes and Locke and is “transcendentally” affirmed in Kant's account of ethics and legality. An influential body of Hegelian inspired critique has suggested, however, that the dialectical deficiencies of the dominant models of Liberalism in late modernity inhere in this “atomistic” or “self‐supporting” characterisation of the individual. The “atomistic” perspective appears as an obstacle not only to the coherent articulation of the compatibility of liberty and equality, but also to the attempt to express the mutuality of recognition between agents that might offer a genuinely communal conception of constitution and subject. Employing as a frame of reference Alan Brudner's analysis of these issues in his comprehensive Constitutional Goods (Brudner 2004) it is argued that legal and political theory might usefully adopt an understanding of Hegel's notion of “recognition” (Anerkennung) in this regard without drastic phenomenological reconstruction of the Cartesian or Kantian subject.     

Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law

In Twilight of the Idols, Nietzsche presents a history of metaphysics that can also be read as a history of jurisprudence. Nietzsche shows how—via Platonism, Christendom, Kantianism, and utilitarianism—the “real” or “true” world of ideals gives way to an “apparent” phenomenal world that is itself ultimately brought into question. This article shows how 20th-century legal thought, broadly construed, also moves away from “ideals” of law toward an understanding of law as observable social phenomena. It suggests that the move to the “apparent” world in legal thought raises questions similar to those raised by Nietzsche's work: Does sociological law point to a nihilistic destruction of the legal tradition or to a joyous possibility of overcoming that tradition?     

Democracy and Disagreement

Abstract. According to Popper's critical rationalism, the possibility of disagreement is at the heart of open societies. If this is assumed to be true, is it not illiberal to try to justify principles of justice, which can be regarded as the subject of an unending collective deliberation? I suggest that it is not, using an analogy with scientific progress. Moreover, I try to show that Rawls's achievement is misunderstood if one forgets that it is supposed to overcome the antinomy between “la liberté des Modemes” and “la liberté des Anciens.” In this respect, I insist on some unnoticed similarities between Rawls's and Popper's points of views. I conclude on the idea of the “neutrality” of the theory of justice, suggesting a link between Rawls's approach and the French republican tradition.     

Moral Realism and Kantian Constructivism

Abstract. This paper questions nearly every major point Christina Lafont (2004 ) makes about “the validity of social norms” and their relation to moral realism and Kantian constructivism. I distinguish realisms from theories of objective or subjective knowledge, then from cognitivism. Next, I distinguish Kant and constructivism from Rawls' political constructivism. Finally, I propose clues for an alternative theory of moral constructivism.     

Why Should Justice Be Seen to Be Done?

A well-known maxim instructs that justice should be seen to be done. When “seen” is understood in the sense of “observed”, the maxim is easily defended: open court proceedings protect against arbitrary and partial decisions. However, when “seen” is understood in the sense of “seem,” the maxim is more puzzling, since it is not obvious why courts should concern themselves with people's perceptions that justice has been done. This article addresses this issue, with a particular focus on the social and other benefits that result when judges observe procedures that are widely regarded as fair, especially in criminal trials. The article draws on empirical studies in social psychology that show that when legal authorities treat people in ways that accord with “lay” procedural expectations, they are more likely to view the authorities as legitimate, to cooperate with them, and to obey the law out of an internalized sense of obligation. The article explores the moral significance of these empirical findings, arguing that it would be superficial to see them as a recipe for social stability. The deeper truth conveyed by the empirical research is that relating to people in ways that are widely perceived to be fair is a way for authorities to engage people's moral sentiments and to enliven their virtuous capacity to put aside considerations of self-interest so as to do what is right. This dynamic provides a sound moral foundation for courts to concern themselves with perceptions of justice.     

Rights and Resources—Libertarians and the Right to Life

The author addresses Robert Nozick's claim that: “The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition.” Hence Nozick insists that rights are violated if citizens are compelled to contribute to others' welfare, however urgent their needs may be. The author argues that it is characteristic of libertarian theories that they invoke the moral sanctity of private property against welfarist or egalitarian conceptions of social justice. Nozick's version of the libertarian critique has three conceptual pillars–“right,”“thing” and “space.” On that basis Nozick claims that talk of welfare “rights” can be condemned on the plane of rights. This is true, Nozick maintains, even of “the right to life.” The author contends that this argument fails. It equivocates over the idea of “rights”; and it misconceives crucial features of property. Nozick deploys exclusive “domain rights,” whilst attacking “important‐interest rights.” His historical‐entitlement theory fails as a justification of private property. The author argues that, so far as material objects are concerned, private property institutions depend upon trespassory rules which do not impose morally binding obligations unless basic needs are catered for. Furthermore, private property institutions also comprise monetary resources to which the spatial metaphor of exclusive rights does not apply. Holdings vested in any particular person at any particular time are stamped, morally, with a mix of contestable and mutable property‐specific justice reasons. Hence it is fallacious to suppose that ownership rights together exhaust all normative space over “things.” The major objection to speaking of everyone's having a right to various things such as equality of opportunity, life, and so on, and enforcing this right, is that these “rights” require a substructure of things and materials and actions; and other people may have rights and entitlements over these. [≡] The particular rights over things fill the space of rights, leaving no room for general rights to be in a certain material condition. (Nozick 1974, 238)     

What is Left of the Law and Society Paradigm after Critique? Revisiting Gordon's “Critical Legal Histories”

For more than twenty‐five years, Robert Gordon's “Critical Legal Histories” has been savored by legal historians as one of the most incisive explanations available of what legal history can and should be. Gordon's essay, however, is of significance to the course of sociolegal studies in general. This commentary offers an appreciation, and a critique, of “Critical Legal Histories.” It explores Gordon's articulation of the central themes of critical legal studies, in particular his corrosion of functionalism and embrace of the indeterminacy thesis, and assesses the consequences for sociolegal and legal‐historical analysis of the resultant stress on the contingency and complexity of social life.     

Hannah Arendt's Moral Ontology: Comments on David Luban's Arendt on the Crime of Crimes

David Luban identifies a tension between Arendt's conception of ethnic identification in a context of persecution and her conception of humanity. That tension pertains to the reality—or realities—that Arendt addresses: the moral reality of her Bildung that appears throughout her work, and is centered on the “dignity of man,” on the one hand, and the divisive, “political” reality that she was forced to face when “attacked as a Jew,” on the other. By implicitly accepting that in a context of persecution one cannot escape the framing relevance of the “political” —an idea that is also present in her imaginary condemnation speech of Eichmann—Arendt betrays a fundamental theme of her work: “forgiveness” and the inherent possibility of a “new beginning.”     

For Both Love and Money: Viviana Zelizer's The Purchase of Intimacy

Viviana Zelizer's recent book, The Purchase of Intimacy (2005), presents an innovative theory of how social and legal actors negotiate rights and obligations when money changes hands in intimate relationships—a perspective that could change how we understand many things, from valuations of homemaking labor to the 9/11 Victim Compensation Fund. This essay describes Zelizer's critique of the reductionist “Hostile Worlds” and “Nothing But” approaches to economic exchange in intimate relationships and then explains her more three‐dimensional approach, “Connected Lives.” While Zelizer focuses on family law, the essay goes beyond that context, extending Zelizer's approach to transfers of genetic material and concluding that her approach could point toward a more equitable resolution of disputes in and about these markets.     

Contemporary Indigenous Art,Resistance and Imaging the Processes of Legal Subjection

Postcolonial discourse is incredibly diverse and postcolonial art in Australia has numerous critical modes. This paper describes an approach in Contemporary Indigenous art that attempts a critique of the law from within the law rather than outside of it. It takes a radical form of over-proximity, rather than avant-garde distance, and finds the gap and failure in law’s attempt at creating legal subjects of us all. In the work of Gordon Bennett, Danie Mellor and the duo Adam Geczy and Adam Hill, there is a working through the political and legal ramifications of the Indigenous subject in contemporary Australia. The focus on processes of initiation and subjectivization, or what Althusser called “interpellation” and show the effects of this interpellation in the Indigenous subject and offer modes of resistance. The artists are informed by Lacanian notions of subjectivization and utilise this approach to semiotics and power as the starting point for their critique.     

Regina v. Butler: The harms approach and freedom of expression

In Regina v. Butler the Supreme Court of Canada explicitly accepted the argument that obscenity law should be based on harm rather than morality. The court's opinion, and the view of certain feminists, depends heavily on social science research that shows exposure to some pornographic materials may have harmful effects. However, an analysis of these studies indicates that the findings encompass a wide range of stimuli and are not limited to pornography. Based on the research, the court's shift to a harms approach should logically include all presentations containing harmful messages, regardless of the degree of sexual explicitness. As such, this article argues that the court has not really abandoned its moral approach to obscenity. It has just disguised it by adopting the rhetoric of harmfulness.     

War and International Order in Kant's Legal Thought“*

Abstract. Kant's writings on international law and especially his Toward Perpetual Peace have been interpreted both in a “statist” and a “cosmopolitan” manner. In this article it is argued that these interpretations stem from an ambiguity in those writings. In the course of proposing a resolution of this ambiguity, the first question to be examined is the extent to which war forms a part of human history and of human nature. Secondly, Kant's arguments against the realistic position and the conditions for a lasting peace are presented. An interpretation is then offered both of the proposed league of nations and of the situation that exists when such a league is still absent. According to the interpretation offered here, Kant's writings fit partly within the tradition of the “just war.”¹