IVR in Krakow: Fred Schauer on the Concept of Law

Introduction

I am blogging from the 23rd IVR World Congress of Philosophy of Law & Social Philosophy in Krakow Poland. "IVR" or "the World Congress" is really the only regular international gathering of legal philosophers–although as you might guess from the name of the conference, there is "social philosophy"–or what I might call "applied political and moral philosophy" as well.

The first session is being held in the "Auditorium Maximum" of the "Universitas Jaellonica Cracoviensis," founded in 1364 and the second oldest (after Prague) university in eastern Europe. The auditorium is thoroughly modern,however. "IVR," on the other hand, is just a bit quaint. World Congresses open with formal welcoming speeches from university officials and local politicians and this one is no exception. The very first lecture was to be a tribute to Alexander Peczenk by Aulis Aarnio, but due to health problems Aarnio could not attend. Carl Wellman pinch hit & did a moving tribute in Aarnio’s stead.

Wellman then introduced Fred Schauer, who delivered the "Opening Lecture" entitled "Is There A Concept of Law." The major lectures at IVR are published in advance–of course, this is nice for everyone, but it is crucial at a multilanguage conference like IVR, where many attendees need the text to read at leisure. Unfortunately, Schauer decided not to read his lecture and made a number of very substantial changes to the substance of his presentation. I’m sure Schauer was well motivated, but this is not the best behavior under the circumstances as anyone with a carefully prepared question that was painstakingly translated into English is forced to improvise, and if their "oral" English is not excellent, they would likely have had difficulty following Schauer.

Conceptual Analysis Again

Schauer’s talk concerned what has become a perennial topic in discussions about the philosophy of law–the question whether conceptual analysis of the "what is law" question has been overemphasized at the expense of other philosophical inquiries. The thesis of Schauer’s talk is that it is time for a reorientation of the philosophy of law–away from the Hart-Dworkin-Raz debates about "what is law" and towards something different, which Schauer identified as "special" (as opposed to "general") jurisprudence, with an emphasis on particulars (as opposed to universals).

I should make it clear, right off the bat, that I am entirely in sympathy with Schauer’s thesis. I believe discussions about the concept of law have been important and productive, but the most sophisticated discussions (about "inclusive" versus "exclusive" legal positivism) in contemporary philosophy of law have a narrow audience, and many important topics in normative legal theory, legal metaphysics and epistemology, and in the investigation of important legal "concepts" other than "law" itself, are in my opinion more likely to produce fruitful, interesting, and useful conversations. And I am a huge fan of Schauer’s work–which has been useful on many many occasions. Schauer has shaped my view of several important topics–a complement I could pay very few legal theorists.

Nonetheless, I did not find Schauer’s remarks either illuminating or persuasive. Perhaps this was largely due to the improvised nature of his oral (as opposed to original written) remarks.

Framing the Issue

Schauer framed his talk by referring to a number of issues that he would not discuss. Thus, he noted that the very existence of "concepts" is disputed by philosophers, as is the viability of "conceptual analysis" of a methodology. Likewise, he questioned the utility of using intuitions as the source of data for conceptual analysis. But he then argued that even if intuition-driven conceptual analysis of a "real" conept of law is possible, and even if it results a "best analysis" of a single concept, there are other topics that are worth the attention of legal philosophers.

Two Questions: Is it philosophical? Is it useful?

Schauer’s talk was delivered extemporaneously–he did not read his text. This sometimes makes it difficult to know what the speaker really intended to say–"on the fly" locutions are often imprecise in ways that leads to misintepretation or misspeaking. So please take the following with an appropriate grain of salt.

Schauer seemed to be making two claims about the desirability of a turn from general to special jurisprudence (or from universals to particulars as the subject of the philosophy of law).

The first claim is that investigation of particulars can be "just as philosophical" as the investigation of the abstract question "what is law?" So far as I could tell, Schauer did not actually make an argument that supported this claim. He asserted the claim on mutliple occasions. He asserted, for example, that metaphysics could make a contribution to an investigation of analogical reasoning and judicial precedent, but he produced no argument. More importanly, he never explained what he meant by philosophical or even why it was desirable for scholarly work to be philosophical. This first claim, nonetheless, seems right–if it is taken in a certain sense. My sense is that work is philosophical to the extent that it employs the characteristic tools of philosophy–and in this context, really the tools of academic philosophy that is "in the tradition" of post-Fregean American, English, and Continental academic philosophy. These tools can be brought to bear on a variety of topics varying on a spectrum from very general questions like "when is law legitimate" to very specific questions like, "does the United States Supreme Court have a normatively attractive view of affirmative action." Philosophy and Public Affairs and Ethics–two premiere peer-reviewed journals–are full of applied work that is clearly "philosophical." In another sense, of course, the most abstract questions are sometimes considered to be the most philosophical–"what is truth?" and "what is", epistemology and metaphysics. These very abstract and general questions are paradigmatically philosophical–and any investigation of them, in some sense, requires philosophical tools and methods, implicitly or explicitly.

Schauer’s second point was that specific jurisprudence might be more "useful" (he may have said "interesting") than general jurisprudence. Again, I found Schauer’s remarks unsatisfying. What are the criteria for usefulness? And assuming he has such criteria, the argument that specific jurisprudence is more useful than general jurisprudence really cannot be made a priori. Schauer badly needed examples–not just examples of "specific jurisprudence," but examples of philosophical specific jurisprudence producing results (or conversations or something!) that better meet the criteria for usefulness than does general jurisprudence or conceptual analysis of the "what is law?" queston.

General Jurisprudence and True in All Possible Worlds

Part of Schauer’s argument against general jurisprudence rested on the notion that general jurisprudence is concerned with what is true of law in all possible worlds. Or to put it differently, general jurisprudence is concerned with what is "necessarily true" about law. Of course, this does rather limit the ambit of general jurisprudence. Schauer was not careful about formulating this claim–his oral presentation varied in locution. Nothing is true about law in all possible worlds, because there are possible worlds with no humans or creatures of any kind. No propositions about law are true in those worlds–they are lawless. Some theories do claim that law has some properties that hold in all possible worlds in which there is law: these would be the necessary properties of law or the necessary content of the concept of law or the necessary conditions for any candidate entity to count as law. It was hard to tell whether the possible worlds talk was actually doing any work in Schauer’s talk, and, if so, what that work might be.

Philosophy of Law as Subset of Moral and Political Philosophy

Both during his talk and in question and answer, Schauer suggested that the ills of "general jurisprudence" may stem from the view that philosophy of law is a subset of moral and political philosophy. He never really explained this position, which, on the surface, seems quite odd. Conceptual analysis of law is usually associated with Raz and Hart–both positivists who would not (at least on the surface) seem to endorse the subset thesis. At best, conceptual analysis of the "what is law?" question is analagous to metaethics, but it seems quite distinct from substantive ethics and poltical philosophy. Indeed, normative legal theory as a topic for the philosophy of law lends itself to applied investigations in criminal law, torts, procedure and the rest–and it would seem like this is exactly the sort of work of which Schauer should (or would) approve.

Sociology, Practices, and What Lawyers Do

Even though Schauer framed his talk by hypothetically conceding that there might be a best concept of law that could be identified by intuition driven conceptual analysis, he proceeded to devote a fair amount of time to arguing that sociology and other empirical work, might both tell us more about important questions and might reveal that actual legal systems do not meet all the conditions that particular theorists argue are among the necessary conditions of the concept of law. I found this part of the talk difficult to follow–all the sentences were fine, but the point seemed to shift. Sometimes Schauer seemed to be arguing against conceptual analysis and sometimes he seemed to want to avoid making any strong critical claims.

There was lots more to Schauer’s talk, but let me say a few words about the questions rather than summarizing all of his points.

A Question by Robert Alexy

After saying how much he liked Schauer’s talk, the eminent German philosopher of law asked a very critical question. He suggested that Schauer’s talk had missed the fundamental point that a concept must be "aequate to its object." There are, Alexy said, different concepts (or coneptions of law), but the key is to find an adequate concept. Alexy also questioned the possibility of specific jurisprudence as philsophy. Playing off one of Schauer’s examples, Alexy asked Schauer to produce a philosophical examination of "bar exams."

Schauer conceded the "adequacy" point, and then clarified that he did not mean that all specific legal practices could yield interesting philosophical discussions, and in particular, he had nothing to say about bar exams.

Pressed Again by Neil McCormick

Neil McCormick, one of the great legal philosphers of his generation, pushed Schauer again on this point. He suggested that Schauer hadn’t fully accounted for the notion that one cannot do sociological or emprical investigation of a phenomenon (law) unless one first has a concept that tells you what the phenomenon is (and isn’t). He also noted that particularity takes a variety of different forms, geographic, topical, and so forth.

Schauer embraced McCormick’s point about different kinds of particularity. He then seemed to retreat (or perhaps clarify?) his position on concepts–suggesting that there may be one correct analysis of the concept of law, but "So What?" This was just Q & A–so Schauer had little time to elaborate on his "So What?," but I’m sure many in the audience thought there was more to say–i.e, "So what? Well quite a lot actually!"

Dennis Patterson Comes to Schauer’s Defense

Yet another dramatic moment came at the very end as Dennis Patterson came brilliantly to Schauer’s defense. Patterson started with the observaton that the philosophy of language (and metaphysics I might add) are prior to discussions about methodology in the philosophy of law. Patterson suggested that defenders of conceptual analysis of the what is law question must answer powerful critiques by Quine and Wittgenstein of "necessity"–that is, of necessary conditions for the application of concepts. Those critiques, Patterson suggested, prompted a powerful reply by Kripke (in his famous Naming and Necessity), but Kripke’s defense only applied to "natural kind concepts," such as "gold" or "water."

In my opinion, Patterson (at the very end) made it clear that Schauer’s talk would have been much clearer if he had committed to some position on conceptual analysis of necessary conditions. Schauer would have been on firmer ground if he had either clearly embraced conceptual analysis, but argued that it was not productive or edifying or if he had rejected conceptual analysis and argued that there are no necessary and sufficient conditions for law. Instead, he seemed to want to avoid commitment–making for a discussion that was unsatisfying for all.