by Robin West. New York: Cambridge University Press, 2011. 220pp. Cloth $90.00. ISBN: 9780521460002. Paper $29.99. ISBN: 9780521738293.
Reviewed by J. H. Bogart, Telos VG & S.J. Quinney College of Law. Jbogart [at] telosvg.com.
The book is intended as an introductory text for use in law schools, undergraduate political science and philosophy courses. It is composed of an Introduction, three chapters, and a short conclusion. There is no bibliography. The three chapters cover three movements in American jurisprudence: Natural Law, Legal Positivism, and Critical Legal Studies. Each chapter provides an expository section covering the general contours and central claims of the respective movements. The exposition is intertwined with and followed by critical discussion of some objections to the central tenets of the respective movements, and an explanation of how the movements failed to maintain a normative jurisprudence branch. There is some discussion of Critical Race Theory and Feminist Legal Theory, as well as Legal Realism, in the third chapter. The first two chapters are about 48 pages each, while the third chapter on Critical Legal Studies is half again as long (70 pages).
West seems to have in mind by the term “normative jurisprudence” moral and political criticism of laws, law, and legal systems. West is of the view that normative jurisprudence has effectively disappeared from the legal academy, and that the disappearance is a serious loss. In the later sections of Chapter Three and in the Conclusion, West offers some suggestions on reviving normative jurisprudence, and argues the need for doing so.
Chapter 1 surveys Natural Law theory, primarily of the twentieth century. Thus, although Aquinas receives some attention, the primary focus in the expository section is on, in order of importance, John Finnis, Lon Fuller, and Ronald Dworkin. The attention to Finnis is a welcome turn. West is right to lament the lack of attention to Finnis' Natural Law and Natural Rights, the second edition of which recently appeared. The discussion of Natural Law’s normative jurisprudence adds Robert George as an important figure.
West believes that the central claim of Natural Law jurisprudence is that ‘an unjust law is no law.’ She considers two interpretations of the slogan: First, that it means that where law is unjust, there is no moral obligation on the part of citizens to obey the law, and, perhaps, there is no moral obligation of obedience on the part of officials. Second, that the slogan means that an immoral or unjust law is not legally binding at all, i.e., in addition to an absence of a moral duty to obey there is no legal duty to obey. West adopts the second version, what she calls a political interpretation of the slogan: Commands that are immoral are not law, and civil disobedience is appropriate (p.19). West’s preferred interpretation raises a “Looking Glass” problem. If a [*206] command is law, from that fact one might infer that there is a moral duty to obey the command and the command is therefore just. It is a kind of mirror image of the view that an immoral command is not law. It is not clear if West is suggesting the inference embodied in the “Looking Glass” problem is sound (it isn’t) or is, instead, a common error to be explained. The ambiguity is odd because West focuses much of the discussion of the Chapter on the work of John Finnis who goes to some trouble to repudiate both of the interpretations of the slogan that ‘an unjust law is no law’ as a genuine part of Natural Law theory (e.g., Finnis, 2012, chs II and XII).
Using Finnis as a source, West discusses the more central focus in natural law theory on the relation of just (or unjust) law to promoting human good. The idea is that law (or legal systems) has normative grounding in the relative success of the law in promoting and securing fundamental human or common goods. In Finnis, these include things like sociality, knowledge, security, and the like. As West notes, such an approach to law raises the question of what the ‘common good’ is. One answer is that it is the sum of individual goods of affected persons. Individual goods are basic aspects of well-being that are good in themselves. West naturally links the Natural Law ‘common goods’ to “capabilities” theory. In this light, Natural Law theory offers a basis for normative analysis or guidance both to adjudication and to legislation.
Natural Law (of a more traditional sort) does offer grounds for a normative jurisprudence because it is grounded in ‘common good.’ Normative jurisprudence arises from the analysis of the degree of fit between the law and salient common goods, and exploration and development of the content of ‘common goods.’ The Natural Law notion of ‘common good,’ however, is not a subject for ‘liberal progressive’ law scholars because they make no inquiry into nature of human good (p.34).
A liberal jurisprudence focusing on ‘common good’ would focus on the duties of legislators, and norms that guide legislation, in addition to adjudication. But such a liberal jurisprudence would lack a jurisprudential tradition grounding robust political critiques of the US Constitution, referencing ultimate ends, and would also lack a good alternative to public choice analysis of legislative activity. Finally, it would not provide a basis for liberal/progressive lawyers to challenge prevailing views regarding human nature and the normative systems that spring from them. Instead, one would have the thin ‘universal particularization’ (pp.41-42).
Natural Law fell out of favor and its normative contribution to legal theory disappeared during the late 20th century. West offers several explanations for this development. First, Lon Fuller, who clearly lies near the center of Natural Law thinking in the United States, disavowed substantive Natural Law (the sort defended and developed by Finnis) in favor of a procedural natural law. Fuller’s Morality of Law is an argument for necessary procedural content for law, thin enough to be accepted by Hartian Positivism. Fuller rejected the notion that the law ought to specify moral conditions of a good life. Thus, the leading figure in American Natural Law jurisprudence abandoned that portion able to sustain a normative [*207] jurisprudence. Although (early) Dworkin might be thought to have taken up the banner, his view was that equality before the state requires neutrality with respect to theories of good. So there is a retreat from jurisprudential consideration of the nature of the good life (‘common good’). West also believes that the views of Natural Law thinkers about marriage, sex, and same sex marriage made it unattractive.
Chapter Two is devoted to Legal Positivism. West focuses on Jeremy Bentham’s work as the central example of Positivist jurisprudence. Although that choice is a little unusual, it fits with the overall project of West’s Introduction. As West notes, Bentham divided his jurisprudence between expository work and “censorial jurisprudence.” As did Bentham, West takes both projects to be fully positivist, with censorial jurisprudence, i.e., reform of British law, as the primary project. Thus the expository project was a necessary foundation for legal and social reform because it so strongly separated the existence of law from moral justification of law. “In direct contrast to Bentham’s insistence that the reason positivism matters, so to speak, is that it is the only sensible foundation jurisprudence for the criticism (and reform) of existing law, legal positivism, for at least three-quarters of a century, has been perceived in this country as the jurisprudential foundation for an undue conservative acceptance of law as it is” (pp.66-67, emphasis in original). In her view, Legal Positivists have abandoned the ‘censorial project’ almost entirely.
West’s complaint is that Positivist jurisprudence is not critical enough. Its criticisms occur within legal doctrine, assume the basic legal structure is sound (p.70). The problem with Legal Positivism is that it suggests that there is no overlap of law and morality, that legal norms and morality are entirely distinct. This separation undermines the grounding for normative jurisprudence. A second problem with Legal Positivism is the focus on the authority of law (rather than value or justness of law). The common view of law (among Positivists?) in the US is that it is “so capacious” that theorists have no need for a genuine censorious jurisprudence (p.74). A judge’s job is to formulate and apply law and so should see law in its best light. Judges are “charged with the work of [remaking legal materials] toward the end of doing justice” (p.75). So “judges should decide cases in accordance with law, interpreted in such a way as to make it as congruent with the demands of justice as it is possible to be” (p.78). This (Dworkinian) understanding of judging and law makes the separation of law and morality look peculiar and unpersuasive. According to West, the positivist judge would abjure moral improvement of law (pp.76-77, and note 47). “Legal positivism, when embraced and employed by judges, as American legal theorists have claimed now for more than a century, does look like a path toward complicity with legally sanctioned evil” (p.77).
The farthest one gets as a Positivist in addressing whether law is morally good is typically an analysis under individual rights (p.89). While such an analysis is in some degree ‘censorious,’ it is not a “positivist project” because criticism based on rights inevitably becomes a criticism on the basis of some constitutional right. There is no space between moral criticism of law and constitutional adequacy (p.90). Grounding all arguments of rights in the [*208] Constitution drowns independent moral critique and argument (p.95). Even cost/benefit analysis is not a positivist censorial jurisprudence because it is not moral analysis or criticism.
Chapter Three addresses Critical Legal Studies and its potential for grounding a normative jurisprudence. CLS aimed to free critical thinking and to create room for genuine deep moral reform of the law. Critiques were developed that aimed to show that legal doctrine (and analysis) was highly malleable and not based in moral demands. CLS critiques, at least initially, carried a “moral brief” aimed at showing that moral reform was needed. CLS was therefore an attack on ‘legal liberalism.’ One of CLS’ enduring contributions is the critiques showing that rights serve subordinating, rather than liberatory, ends. For example, the right to privacy protected some aspects of life while giving free reign to market forces, market analysis, and political domination in other areas. CLS advanced two other critiques: indeterminacy and contingency. The indeterminacy critique argued that neither legal texts nor rights had stable or well-defined meanings. The contingency critique argued that the present conception of human life is an artifact of social forces and that the social world may be dramatically altered. To have bite, these critiques required that human nature and social life be highly malleable (p.113). In the 1990s CLS became comatose. There was a kind of revival in 2002 with publication of Brown and Halley’s Left Legalism/Left Critique.
CLS’s ‘moral brief’ is the claim that liberal legalism legitimates unwarranted and unnecessary human suffering and does so largely by valorizing and protecting a private realm of both oppression and alienation (p.120). The ‘moral brief’ is best approached through the critique of rights. The ‘rights critique’ took three distinct forms: (1) political, (2) phenomenological, and (3) jurisprudential. The political critique may be summed up as the view that rights are regressive in practice. The theory is that rights valorize a limited scope of protection leaving other injustices untouched and, therefore, impliedly legitimate. Rights are regressive because they are largely negative in form, e.g., bars on conduct or interference. The phenomenological critique of rights is that rights are “experienced as a defense against the other that the state requires as a precondition of its legitimacy, and hence are experienced as a part of the massive psychic denial of the falsity of that fabric of appearances through which we make each other hostage to the illusion that it is distance from the Other rather than a good heart turned outward that the law in us requires” (p.124). The idea is that there is a false assumption that social closeness is generally unwarranted and unwanted and undesired – if we do not first consent, the interaction is presumptively assaultive and one has a right to be free of it. The jurisprudential critique of rights is that rights are as unstable and as indeterminate as the rules they inadequately embody. West thinks that the rights revolutions of the 1960s and 1970s have turned out to have a regressive bite that swamps their putative good. But the ‘moral brief’ has fallen away from the critiques, leaving CLS without an effective normative jurisprudence.
None of the three major movements has retained a normative jurisprudence [*209] branch. West believes that the loss is explained by a turn away from normative work in legal scholarship resulting from methodological arguments from two sources: (1) Pierre Schlag’s criticism of normative theory as inconsequential and conservative, and (2) Paul Kahn's book arguing that we do not have sufficient understanding of how law works to do normative work (p.178). A consequence of the latter is the rise of interdisciplinary law faculty which has reinforced the notion that normative commitments of scholars are more suspect and the place of normative argument is more limited. Finally, the form of normativity dominant over the last 50 years is highly constrained, what West calls faux-normativity. Faux-normativity arose from three “moments.” The first is the move of law training into university law schools and out of law offices (p.183). The second was the rise of Legal Realism (p.184). The upshot of Legal Realism is that normative work should come from the social sciences. What Holmes (the key figure in Legal Realism for West) and Langdell (the source of the first moment) have in common is that both were uninterested in claims of justice and both focused on judges. The third moment was the re-emergence of formalist approaches to jurisprudence (p.187). Dworkin (presumably his later work) and other liberal scholars developed analyses based on extracting the internal moral values of law, a formalist approach to law. These thinkers, says West, did not look to theories of justice for a normative critique of law.
Faux-normativity has two distinctive traits: first, it is drawn from quasi-historical claims about what the “true" law really was, and, second, it has been made within liberal arguments about what current law really is. Faux-normative scholarship is vulnerable to two critiques. First, faux-normativity is not truly normative. The moral principles invoked are not independent of law and do not provide a basis on which law is truly criticized or reformed. Second, faux-normative scholarship is not genuine scholarship, but rather legal argumentation divorced from a particular case, and hence unduly conservative. (Legal argumentation is what litigators do.) West thinks both of these critiques have merit. "Schlag is right that the sort of faux-normativity that comes from traditional legal scholarship will be tepid and inconsequential” (p.191). The fundamental failing of faux-normativity is that the legal scholarship is not grounded in theories of justice or accounts of the nature of human good.
Why think that legal scholars have anything special to say about justice? West’s answer is that justice should be object of 1egal studies just as good health is object of medical studies. “Yet it is legal scholars, and only legal scholars, who have the knowledge basis, the research tools, and the professional inclination to take on these questions. Legal scholars know the law, the history of constitutionalism, the structures of government, the ideas of a judicial legalism, the criminal law, and the law of criminal procedure. Others do not, either outside or inside the academy, except intermittently – hit or miss – as such knowledge has impact on other disciplines or professions. If deep criticism of law and legalism and legal ideals is to come from anywhere, it will have to be from the legal academy” (p.200). [*210]
The expositions of Natural Law and Positivism, while idiosyncratic in some ways, are appropriate for an introductory text. Those chapters are accessible to law students. The third chapter, too, offers material for teaching, but requires a good deal of supplementation to make sense. It is weighed down by unexplained technical terminology and arguments presented in too abbreviated a form to make much sense. (Students in an introductory course should not be assumed to have any idea what “valorization,” “alienation,” “Rawlsian theory of justice,” or a host of other terms in Chapter Three mean.)
The book has a number of serious defects. Why is there no bibliography? The footnotes are not only no substitute for a proper bibliography, they far too partial, in both senses. The repeated suggestion that legal positivists have neither engaged in normative jurisprudence nor been active in deep reform of law over the last fifty years is just error. West refers to “moral metrics” and the relationships of law and justice repeatedly but says next to nothing about the content of justice or morality. It is therefore hard to tell what makes ‘faux-normativity’ faux aside from not yielding the results West would like. Her account of utilitarian theory in relation to legal theory is dubious. Halfway through the book, West admits that normative jurisprudence is alive outside law schools (pp.103-06). Philosophers, political theorists, economists, political activists, among many others, regularly work in and add to a large body of normative jurisprudence. Her explanation for why work by such people does not matter comes to the claim that those outside the law faculty don’t really understand the law, while those within the legal academy are intellectual sloths who stopped reading outside law as soon as they took their undergraduate degrees (pp.103-05, 199-200). The fundamental problem plaguing the book is that the discussion is organized in terms of analytic jurisprudence not normative theory. Neither Positivism nor Natural Law ties to particular normative commitments, and CLS never had "a moral brief:" it had dozens of incompatible ‘briefs’ along with critiques that precluded normative jurisprudence.
Brown, Wendy, and Janet Halley, eds. 2002. Left Legalism/Left Critique. Durham: Duke University Press.
Finnis, John. 1980. Natural Law and Natural Rights. New York: Oxford University Press.
Fuller, Lon. 1969 (rev.). The Morality of Law. New Haven: Yale University Press.
Kahn, Paul. 1999. The Cultural Study of Law: Reconstructing Legal Scholarship. Chicago: University of Chicago Press.
Schlag, Pierre. 1990. “Normative and Nowhere to Go,” Stanford Law Review 43 (November):167.
Copyright 2012 by the Author, J.H.Bogart.