Only The Sangfroid

Mark is of fair average intelligence, who is neither perverse, nor morbid or suspicious of mind, nor avid for scandal. He does live in an ivory tower.

These are his draft thoughts…

You told me you were ready for the big one, for the big jump… Does legal theory still exist?

There’s an essay by Isaiah Berlin called ‘Does political theory still exist?‘  Like most of Berlin’s writing, it starts off with an interesting question and then smashes up against the rocks of his dull and uninspired thinking.  By 1961, there really hadn’t been a ‘commanding work of political philosophy’ in the twentieth century and so, ‘with suspicious frequency’, people had put the question of whether political theory was still a thing.

By the end of the essay — after we’ve wandered through topics such as whether JFK was really president… again… — Berlin informs us that there’s still work for political theory to do and so it wasn’t really dead.  But right up near the start of the essay, Berlin says something interesting about how intellectual disciplines fall into disrepair.  First, a discipline might just be proven false, its central presuppositions having ‘withered away’ or ‘been discredited or refuted.’  Second, a discipline might have been usurped by new disciplines.

Today — an age of Brexit, Trump, debates about populism, about democratic participation, and about the (counter-)revolutionary impact of technology — there’s not a lot of doubt that political theory has interesting things to say.

But can the same be said of legal theory?

In 2007, Brian Tamanaha wrote an essay called ‘The Contemporary Relevance of Legal Positivism‘.  It is a fascinating essay — not least because it provides an easy introduction to some of the key ideas emerging from HLA Hart’s The Concept of Law.  The other fascinating aspect of the essay is the extent to which it operates as a criticism of legal theory more generally than legal positivism specifically.  Tamanaha is answering the charge that legal positivism has become stale and boring.  There’s a wonderful paragraph early on:

A growing number of prominent theorists sympathetic to legal positivism have voiced concern about its current orientation. Jeremy Waldron observed that ‘these analytical discussions tend to be flat and repetitive in consequence, revolving in smaller and smaller circles among a diminishing band of acolytes.’ William Twining described debates among positivists as ‘repetitious, trivial, and almost entirely pointless.’ Frederick Schauer noted that ‘large numbers’ of American law professors believe ‘that analytic jurisprudence in general, and the debates about legal positivism in particular, are the largely irrelevant preoccupation of a small group of socially unaware but philosophically obsessed pedants’.

Tamanaha explains that the central ideas of legal positivism can and should speak directly to contemporary problems of law, lest it become merely ‘the exclusive home for extraordinarily sophisticated constructions by brilliant legal philosophers’.  But the same is true for the theorists that Tamanaha puts in dialogue with legal positivism.  John Finnis’ Natural Law and Natural Rights might be (and is) a beautiful piece of intellectual work, but its impact on public discussions about law is negligible.

Far from suffering a fate of either being proven false or being usurped by other disciplines, legal theory might instead just collapse into irrelevance entirely.

The past week, Australian media has been dominated by one of the most interesting legal questions of the past year: on what grounds can Centrelink — Australia’s social security agency — declare that welfare recipients have debts?  People really struggled to explain their situations.  Centrelink had found data which they believed demonstrated that people had been overpaid welfare, but recipients of letters believed that the data was used incorrectly.  The social position was that a debt had to be ‘real’, and people were complaining that the debt alleged by Centrelink was ‘fake’.  There was no practical way for people to dispute the debts, and people complained that the behaviour was unfair and immoral.

In play were two very different conceptions of the law.  On the one hand, Centrelink was (tacitly) stating that the debt was a product of legal reality.  There is an Act and it says if certain conditions are met then there is a debt to the Commonwealth and people are obliged to pay that debt.  On the other hand, the general population was saying that a debt arises from social acts in the real world.  If somebody hasn’t taken money to which they were not entitled (that is, if there is no fault), then there is no way for a debt to be real.  So on the one hand, we have an approach that is purely formal in its operation; on the other, we have an approach that is built around social convention.

I am currently in my own battle with Centrelink about an alleged debt.  One of my problems is the extent to which I value my time, energy, and peace of mind.  Do I pay the ‘debt’ just to make it go away, or do I challenge it?  What are the consequences of not challenging it?  If people in my situation don’t challenge the debt, does that make it harder for others to challenge theirs?  How would my ideal legal creature faced with this problem act?  I was engaged in normative questions about law.

The thing that has surprised me about the public discussion about the Centrelink fiasco is the lack of legal theory.  There’s a lot of moral grandstanding and bleating from the usual megaphones, but there really hasn’t been higher order thinking about what’s going on and how people could think about the issues.

For me, that’s the value of legal theory: it produces the language, rhetoric, and ideas for the public to use when navigating and critiquing their legal frameworks.

So when the Australian public was most in need of legal theorists, there were none to be found.  No doubt somebody was too busy writing about the application of Ronald Dworkin’s arguments to international law to look out the window and see that the public needed some intellectual leadership.

In this sense, although it would be terrible to answer the question ‘Does legal theory still exist?’ with the monosyllabic ‘No’, it appears far more terrible that the answer appears to be ‘Yes, but nobody cares.’


One response to “You told me you were ready for the big one, for the big jump… Does legal theory still exist?”

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