Article

Toward Classical Legal Positivism

This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014. 

I have two major aims in this Article. First, I hope to set the historical record straight, so I offer an account of Hobbes’s and Bentham’s work that seeks to understand their views on law not by isolating it from the rest of their wide-ranging body of work, but by understanding their jurisprudential work as part of a broader project. The primary aim of this Article, however, is not historical. My main aim is to contribute to contemporary jurisprudential debates and to suggest that the largely neglected approach of earlier positivists is superior to the view held by most contemporary legal positivists. These two aims are not necessarily congruent. There is an obvious sense in which talk of Hobbes or Bentham as legal positivists is a historical anachronism. The debate between legal positivism and natural law, in the form one finds in contemporary jurisprudence textbooks, is a twentieth-century debate that cannot be found in jurisprudential discussions of past centuries. It is not just that the word “positivist” is not found in the works of Hobbes, Bentham, or even Austin; it is that the debate as it is understood today was not one that they were engaged in. Therefore, it is in some sense pointless and in some sense misleading to worry too much over the question whether Hobbes or Bentham were “really” legal positivists or natural lawyers.

The more meaningful question, and the one I wish to engage in, is to what extent it is useful for us to call Hobbes and Bentham “legal positivists.” My answer to this question consists of three interrelated points. The first is that we draw an explicit link between their ideas and the view that (some time later) would come to be known as “positivism,” roughly the view that the methods of the “human sciences” are essentially the same as those of the natural sciences. The second point is that the classical legal positivists’ decisive break with natural law ideas prevalent in their day is to be found exactly here, in their views about metaphysics and nature. The third point is that this aspect of their work has been, in my view regrettably, abandoned by contemporary legal positivists. Though all three points are related, in this Article I will say relatively little about the first point, as I discussed it in greater detail elsewhere.

Sovereignty and Subversion

This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014. 

Between those who advocate “too great liberty” and those who contend for “too much authority,” Thomas Hobbes found it difficult “to pass between the points of both unwounded.” It does not appear that he cleared the gauntlet successfully. One of the many curiosities in Hobbes’s work is its provocation of two diametrically opposed, and seemingly inconsistent, criticisms. When Leviathan was first published some 350 years ago, Hobbes’s very name became an epithet in polite circles, evoking the horrors of atheism, libertinism, and worst of all, defiance to established authority. Today, the same work that Hobbes’s contemporaries denounced as a “Rebel’s Catechism” is widely viewed as an unequivocal and misguided defense of an authoritarian and absolutist government. Hobbes’s descriptions of the need for a powerful sovereign are many and memorable enough to have eclipsed, over time, his endorsements of a few specific rights to resist the sovereign. But Hobbes’s contemporaries did not overlook the subversive strands of his work, and neither should we. In particular, there is much to be learned from the juxtaposition of Hobbes’s account of law—a command made with authority, to one obliged to obey—and his account of punishment—an act of violence that the target has a right to resist. This juxtaposition illuminates some recurring jurisprudential questions about the relationship of law to coercion, and the possibility of strictly descriptive, nonevaluative legal theory.

Hobbes’s account of law, like his account of punishment, does not fit well into our existing scholarly categories. I shall argue that the fault lies in our categories, and not in Hobbes. He was neither a legal positivist nor a natural law theorist, at least not as we usually use these labels. He adopted neither a retributive nor a consequentialist justification of punishment. Yet his account of human interaction, particularly with respect to law and punishment, captures actual experience better than the more familiar alternatives. Moreover, the space for subversion in Hobbes’s theory may make his account more normatively appealing than it has seemed to modern liberals.

The Article is organized around three questions about Hobbesian theory: What is law? What is its relationship to punishment? And what are the implications of Hobbes’s theory for contemporary efforts to describe law or the relationship of law to punishment? The first of these questions has been tackled by Hobbes scholars, of course, but Hobbes’s legal theory is still so widely mischaracterized, sometimes even by Hobbes scholars, that it is worth returning to his claims. The second question has received much less attention, perhaps because a right to resist punishment seems so discordant with the authoritarian Hobbes we know, or think we know. And the third question has received still less attention, for contemporary jurisprudence scholarship rarely cites anyone who wrote before Jeremy Bentham and John Austin. I hope to show that, in many instances, Hobbes has been misread; even more importantly, I hope to persuade scholars of jurisprudence that what Hobbes actually said is worthy of their engagement.

The Constitution and the Philosophy of Language: Entailment, Implicature, and Implied Powers

This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014. 

The main purpose of this Article is to begin to recover and elucidate the core textual basis of a progressive approach to constitutional law, which appears to have been embraced in essential respects by many influential figures, including Wilson, Hamilton, Marshall, and the two Roosevelts, and which rests on an implied power to promote the general welfare.

To do so, I will rely on two strange bedfellows: the law of corporations and the philosopher Paul Grice. An ordinary language philosopher like Grice, who writes about truth-functional connectives, bald French kings, and the like, might seem like an unlikely ally to enlist in this endeavor. As I will seek to demonstrate, however, underestimating the significance of Grice’s ideas for constitutional law would be a mistake. Plausibly interpreted, the Constitution vests an implied power in the government of the United States to promote the general welfare, and Grice’s distinction between semantic and pragmatic implication is a helpful means of understanding why. In what follows, I first summarize some key aspects of Grice’s philosophy of language (Part II) and briefly illustrate their relevance for constitutional law (Part III). The remainder of the Article (Parts IV to VI) is then devoted to explaining how, along with a relatively simple principle in the law of corporations, according to which a legal corporation is vested with the power to fulfill its purposes, Grice’s distinction between semantic and pragmatic implication helps to illuminate a thorny problem of enduring interest: What powers does the Constitution vest in the government of the United States?

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