Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?

The law within each legal system is a function of the practices of some social group. In short, law is a kind of socially grounded norm. H.L.A Hart famously developed this view in his book, The Concept of Law, by arguing that law derives from a social rule, the so-called “rule of recognition.” But the proposition that social facts play a foundational role in producing law is a point of consensus for all modern jurisprudents in the Anglo-American tradition: not just Hart and his followers in the positivist school, most prominently Joseph Raz and Jules Coleman, but also the anti-positivist Ronald Dworkin, who argues that law necessarily synthesizes moral considerations with social facts. But which group’s practices ground each legal system? In particular, which group’s practices undergird U.S. law? Positivists since Hart have universally pointed to either officials or judges as the “recognitional community” (my term): the group such that its rules, conventions, cooperative activities, or practices in some other sense are the social facts from which the law of a given legal system derives. So Hart and all other positivists would identify either U.S. officials or U.S. judges as the recognitional community for U.S. law. This Article grapples with the tension between the positivist’s official- or judge-centered account of the recognitional community and the “popular constitutionalism” now so widely defended by constitutional scholars such as Larry Kramer, Robert Post, Reva Siegel, Mark Tushnet, Jeremy Waldron, and many others. Surely the popular constitutionalist would want to claim that U.S. citizens, not judges or officials, are the recognitional community for U.S. law. I term this position “deep popular constitutionalism.” Indeed, it turns out that Dworkin’s account of law, in its ambition to generate associative moral obligations for the citizenry as a whole, implies deep popular constitutionalism. Here there is a disagreement, hitherto unnoticed, between Dworkin and the positivists. My solution to this disagreement – to the debate between deep popular constitutionalists and deep official or judicial supremacists -- is to dissolve it by providing a group-relative account of law. Social norms, such as norms of dress or eating, are clearly group-relative. A particular dressing or eating behavior may be socially appropriate relative to one group’s norms, yet socially inappropriate relative to another’s. This Article extends the group-relative view from social norms to law itself, with a particular focus on U.S. law and constitutionalism. Part I surveys the jurisprudential literature. It shows how Hart and successor positivists identify the rule of recognition as a social practice engaged in by officials or some subset of officials (judges), rather than citizens generally, and argues that Dworkin by contrast sees the citizenry as a whole as his recognitional community. Parts II and III defend a group-relative account of law. Part II argues, with reference to the U.S. experience, that multiple groups can simultaneously instantiate the kind of social fact that undergirds law, be it a convention, a social norm, a “shared cooperative activity” (SCA), or something else. At many points in U.S. constitutional history, multiple official or citizen groups, defined along departmental, partisan, regional, state-federal, religious, or other lines, have accepted competing rules of recognition for U.S. law. Part III argues that “law” functions, primarily, as either an explanatory or a normative construct, and that insisting on a single recognitional community for each legal system would be arbitrary, both for explanatory purposes and for normative purposes. Part IV considers the many implications of the group-relative account for U.S. constitutional theory – in particular, for popular constitutionalism

Little Black Boxes: Legal Anthropology and the Politics of Autonomy in Tort Law

[Excerpt] Law’s interdisciplinary turn toward social sciences suggests a growing realization that jurists may not be independently equipped to explain the world in and upon which they act. But if law embraces empirical social science for its usable output, it struggles to make sense of the more interpretive disciplines such as anthropology. This has proven to be a major setback for both law and anthropology and confounds the historically productive rapport between the two fields stretching back more than a century. While it may be tempting to conclude that today’s legal academic misunderstands the interpretive turn in anthropology, that conclusion offers little to facilitate a rapport of the kind badly needed today

The Mental Health Act 2012

The new Mental Health Act, 2012 in the Maltese legislation is aimed to be in line and reflect changes in knowledge, medical and social developments in the field on a local level. The new law introduces the Commissioner as a monitoring body while it is the first Law in Malta of its kind which gives a legal backing to rights of users and their carers. It also aims to lead towards the necessary changes in perceptions and attitudes to ensure that people with mental health problems are considered ‘full citizens’. The law outlines practices which are to be followed to reduce the compulsory length of stay in hospital and fosters more community based services.peer-reviewe

Ontology and Reason Giving in Law

John Gardner has noted that legal positivism is more a theory of legal validity than it is a theory about law ’ s nature. 1 This is true in that one can be a legal positivist and hold a variety of different theories about law ’ s nature, but not to the extent that ‘ anything goes ’ ontologically speaking. Rather, it seems fairly diffi cult to be a legal positivist and not say that the law is a kind of social fact. That being said, however, there are a variety of ways of creating social facts so there is some room for disagreement when it comes to the nature of law within the wide umbrella of legal positivism. If our focus is legal validity, then we may not have too much reason to wade into these deeper metaphysical waters. However, I believe that legal positivism has a challenge that is not (as) present in other theories of law: the problem of explaining law ’ s normativity. I contend that one of the best hopes for meeting this challenge is to be found in getting more clarity about what it is that yields these special social facts, although I remain open to the possibility that the challenge can also be met in other ways. Let us fi rst get a bit more clarity on the challenge itself, then we will see how settling the metaphysical questions about law can help to meet the challenge, and then I can suggest how my preferred answer to the metaphysical questions meets the challenge..

Dignity and Social Meaning: \u3ci\u3eObergefell\u3c/i\u3e, \u3ci\u3eWindsor\u3c/i\u3e, and \u3ci\u3eLawrence\u3c/i\u3e as Constitutional Dialogue

The U.S. Supreme Court’s three most important gay and lesbian rights decisions—Obergefell v. Hodges, United States v. Windsor, and Lawrence v. Texas—are united by the principle that gays and lesbians are entitled to dignity. Beyond their tangible consequences, the common constitutional evil of state bans on same-sex marriage, the federal Defense of Marriage Act, and sodomy laws was that they imposed dignitary harm. This Article explores how the gay and lesbian dignity cases exemplify the process by which constitutional law emerges from a social and cultural dialogue in which the Supreme Court actively participates. In doing so, it draws on the scholarly literatures on dialogic judicial review and the role of social meaning in constitutional law. It illuminates how the Supreme Court interprets democratic preferences and constructs social meaning in order to apply fundamental constitutional norms to emerging legal claims. Contrary to the speculations of some commentators, “dignity” in these cases did not operate as some new form of constitutional right. Rather, the identification and protection of dignitary interests served as the unifying principle for a process, unfolding in three cases over thirteen years, through which constitutional law was brought into alignment with evolving public attitudes and policy preferences. The dignity decisions should be understood as majoritarian, not as acts of judicial will. They were broadly accepted because the Court’s insights about the status of gays and lesbians in American society were consistent with dramatic and long-term changes in cultural and public attitudes. As culture and attitudes evolved, so did the social meaning of anti-gay laws. Sodomy laws and marriage restrictions, once accepted as presumptively constitutional protections of tradition and public morality, increasingly came to be understood as impositions of stigma and humiliation—the kind of expressive harms that the U.S. Constitution forbids

Misplaced Fidelity

This paper is a review essay of W. Bradley Wendel\u27s Lawyers and Fidelity to Law, part of a symposium on Wendel\u27s book. Parts I and II aim to situate Wendel\u27s book within the literature on philosophical or theoretical legal ethics. I focus on two points: Wendel\u27s argument that legal ethics should be examined through the lens of political theory rather than moral philosophy, and his emphasis on the role law plays in setting terms of social coexistence in the midst of moral pluralism. Both of these themes lead him to reject viewing legal ethics as an instance of the problem of role morality. In part III I note the similarity between Wendel\u27s view and that of legal process theorists, and I argue that the view involves too much complacency about the American legal system. Part IV examines the central metaphor of Wendel\u27s book, fidelity to law. I distinguish between two forms of fidelity, personal and interpretive. The former is a relation between persons, while the latter means mimetic accuracy in interpretation, translation, performance of music, portraiture, or other forms of representation. I agree with Wendel\u27s views on the requirement that lawyers exhibit interpretive fidelity toward law, but not personal fidelity. I argue that law is not the kind of thing toward which one can have personal fidelity; rather, the fidelity must be toward other members of the community rather than toward norms as such; and in cases where the law systematically discriminates, or is otherwise systematically unjust, the bonds of reciprocity grounding such a relation are absent, and the kind of unconditional obedience to law that Wendel supports is unjustified. Part V asks where, on Wendel’s view, the morality went. I argue that Wendel\u27s view, which derives from but modifies Joseph Raz\u27s analysis of legal authority as exclusionary reasons, does not succeed—either it begs the question of whether law actually provides exclusionary reasons or, if (as Wendel suggests) the reasons are not wholly exclusionary, Raz’s two levels of reasoning collapse into one, and acting on moral grounds is not in fact excluded by legal authority. I then turn to Wendel\u27s ideas about moral remainders —the moral costs that acting on his view of legal ethics may inflict on others. Wendel suggests that some form of atonement can cancel the moral remainder, but I am skeptical that his proposal—atoning through law reform activities—can do the job

Reflexive Governance and European Company Law

The use of reflexive forms of regulation is growing within the EU, in particular as the open method of coordination ('OMC') is applied to a growing number of contexts including employment policy, social inclusion, enterprise promotion, environmental protection, energy policy, and fundamental human rights. Company law, however, seems to be an exception to this: recent activity has taken the form of 'hard law' harmonization through directives, coupled with the stimulation of regulatory competition through judgments of the European Court of Justice in relation to freedom of movement, stemming from the Centros case. There is a very limited 'company law OMC' in the form of the deliberations of the European Corporate Governance Forum, but there is little evidence here of what proponents of the OMC call 'learning from diversity'; instead, the Forum appears to envisage the elimination of country-specific practices which it refers to as 'distortions of competition'. This paper argues that the lack of a meaningful company law OMC is likely to prove a more serious long-term obstacle to capital market integration than the persistence of inter-country variations in corporate governance practices. The example of labour law shows how functional convergence and a coordinated raising of standards can be achieved by the dovetailing of the OMC with social policy directives. By contrast, the recent failure of the Takeover Directive to impose a uniform model of takeover regulation indicates the limits of top-down modes of harmonization. At the same time, the case of labour law highlights the importance of placing the OMC within a wider framework of legal support for fundamental rights, of the kind which is capable of providing a countervailing force against court-led deregulation.reflexive governance, company law, labour law, European Union

Love as Legal Methodology: Comments on \u3ci\u3eLove in a Time of Envy\u3c/i\u3e

In academic papers about emotion, it is not uncommon to find a kind of disconnect between the detachment of theoretical and scholarly language and the subject of the paper--the emotions. One of the lovely, and challenging, aspects of Jonathan Goldberg-Hiller\u27s article is that it not only conveys the emotions that are its subject, but it brims with its own emotion; it reads like a text written out of shattered love. Goldberg-Hiller takes up Jean-Luc Nancy\u27s contention that love is shattered by its very essence. It fragments the self at the same time as it refracts into many forms. Goldberg-Hiller understands Nancy as suggesting caution about trying to bridge the gap between love and law, and caution about any unifying theory of love. The author suspects that Goldberg-Hiller also finds in Nancy\u27s theory of fragmented love, a methodology and an emotional style. Goldberg-Hiller writes of love, envy, and law in ways that burst, cut, and multiply as Nancy suggests love does. The article throws out shards of theory, literature, politics, rhetoric, psychoanalysis, visual imagery, texts, and emotions. In Goldberg-Hiller\u27s analysis of both of the emotional moments around which his article is built, the law remains submerged. Here the author goes back to the evocative analysis of love and especially envy to see if the law can be resurrected just a little by thinking about the conflict these emotional moments reflect and the ways in which law, like language, mediates emotional conflict and social change