HUMAN AGENCY IN LAW AND JURISPRUDENCE HUMAN AGENCY IN LAW AND JURISPRUDENCE By Jessica Murphy A Thesis Submitted to the School of Graduate Studies in Partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy McMaster University © Copyright by Jessica Murphy, December 2013 DOCTOR OF PHILOSOPHY McMaster University (Philosophy) Hamilton, Ontario TITLE: Human Agency in Law and Jurisprudence AUTHOR: Jessica Murphy, B.A. (University of Ottawa), M.A. (McMaster University) SUPERVISOR: Professor Stefan Sciaraffa NUMBER OF PAGES: vi, 128. ii ABSTRACT This dissertation explores the way in which different conceptions of human agency have helped to shape the course of jurisprudential thought. The overarching aim is to bring to the surface the deeper commitments of Hartian positivism in its various engagements with rival accounts of the nature of law. In particular, I argue that although contemporary positivists take their account of law to be metaphysically noncommittal, views of what it is to be a human agent continue to motivate, if implicitly, their positions on such enduring jurisprudential questions as the nature and source of law’s normativity, the relationship between law and morality, and so on. In order to better understand these debates, we must therefore understand better the relationship between a theory of law and the conception of human nature that drives it. iii ACKNOWLEDGEMENTS I have benefited profoundly from the kindness and good advice of many people over the course of this project. I want to express my deepest thanks to my supervisor, Stefan Sciaraffa, for being an excellent teacher and friend. I am grateful for his generous guidance, patience, and good humour at every stage in the long parturition of this project. I am blessed to have had Elisabeth Gedge as a wonderful and warm source of guidance, both personal and philosophical. Finally, I would not have embarked on this project were it not for the encouragement and contagious enthusiasm of Wil Waluchow. I am grateful for his continued help and friendship since. My family and friends have lit this long path with every manner of support. I want to thank my family, Wendy Murphy, Mike Murphy Sr. and Jr., and Jen Fitzpatrick, my favourite little ones Clare, Nora, and Sammy Fitzpatrick, and friends Becky Idems and Jennifer Doucet, Dan Harris, Chris Johnson, Ian Lockey, Jen Whaley, Lauren Graham, and Kate and Troy Chapman for being the best ever. I thank God for blessing me with more and better than I deserve. Finally, I would like to express my gratitude to the Department of Philosophy, the Faculty of Graduate Studies and Research, and the Social Sciences and Humanities Research Council for their financial assistance. iv TABLE OF CONTENTS Abstract iii Acknowledgements iv Introduction 1 1. The Nature of Human Agency: Competing Analyses of Rule-Based and Sanction-Based Theories of Law 8 1.1. Introduction 8 1.2. Classical Positivism, Legal Realism, and Hartian Legal Theory 9 1.3. Stephen Perry and Scott Shapiro on the Internal Point of View 12 1.4. Bentham’s Scientific Jurisprudence 17 1.5. Legal Obligation and Human Agency 25 1.6. Naturalism and Normativity 28 1.7. Conclusion 36 2. The Hart-Fuller Debate: H. L. A. Hart and Lon Fuller on Law as General Rules 39 2.1. Introduction 39 2.2. Fuller on the Rule of Law 40 2.3. Law, Morality, and Legal Positivism 45 2.4. Fuller and Green on Means and Ends 53 2.5. Agency and the Legal Form 63 2.6. Conclusion 70 3. Fuller and the Morality of Law Itself 72 3.1. Introduction 72 3.2. Coleman on Law’s Value 73 3.3. Rules and Reason Revisited 78 3.4. Social Practices and Internal Goods 83 3.5. Conclusion 91 4. Neutrality in Jurisprudence: Agency and Values 93 4.1. Introduction 93 4.2. Indirectly Evaluative Legal Theory 94 4.3. Brian Leiter’s Objection: The Natural City Argument 97 4.4. Law and Cities: Two Disanalogies 100 4.5. From Fact to Value 104 4.6. Neutrality in Jurisprudence 113 4.7. Conclusion 118 Conclusion 120 Bibliography 122 v DECLARATION OF ACADEMIC ACHIEVEMENT The following is a declaration that the content of the research in this document has been completed by Jessica Murphy and recognizes the contributions of Dr. Stefan Sciaraffa, Dr. Wilfrid Waluchow, in both the research process and the completion of the thesis. vi Ph.D. Thesis - J. Murphy; McMaster University - Philosophy Introduction This dissertation is intended as a contribution to philosophical debates about the relationship between law and morality. My basic claim is that this relationship is importantly illuminated in various ways and at different levels by an understanding of the way in which a theory of law necessarily incorporates a metaphysics of human nature. As we will see, sometimes this incorporation is explicit, as when Jeremy Bentham’s psychological hedonism gives rise to an understanding of law’s bindingness as grounded in peoples’ causal history with incentives. More contentiously, I argue that though contemporary positivists take their account of law to be metaphysically noncommittal, views of what it is to be human agent continue to motivate, if implicitly, their positions. This is the case, I suggest, with H. L. A. Hart’s analysis. I argue that Hart, in his various engagements with rival jurisprudential theories, draws tacitly on an underlying ontology of human agency. Likewise, these rival accounts often have reasons for rejecting Hart’s analysis that go deeper than can be addressed at the level of substantive theory. In order to properly understand these debates, I suggest, we must understand better the relationship between a theory of law and the conception of human agency that underlies it. Right away it may be objected that Hart is, in various places, candid about the metaphysics to which he subscribed, including certain claims about the nature of human beings. Perhaps most famously, there is his discussion in The Concept of Law of “the salient characteristics of human nature,”1 from which he draws his minimum content of natural law – the basic rules regulating violence, promises, and property that law must have “if it is to serve the minimum purposes of beings constituted as men are.”2 And in his later writings, he speaks openly about the nature of moral and evaluative judgment, endorsing a kind of moral non-cognitivism along the lines of Bernard Williams’ claim 1 H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961), 189. 2 Ibid., 195. 1 Ph.D. Thesis - J. Murphy; McMaster University - Philosophy that ethical sentences are essentially first-personal, true or false only perspectivally.3 But while it is true that Hart is open about these commitments, he also maintained their relative independence from his theory of law, on which he saw their impact as minimal or nil: the rejection of ethical non-cognitivism, e.g., “leaves untouched the fact that there are laws which may have any degree of iniquity or stupidity and still be laws,”4 and the minimum content doctrine is a mere statement of fact, the observation of certain reliable failings or weaknesses in human nature combined with “the simple contingent fact that most men most of the time wish to continue in existence.”5 One of the primary aims of this thesis, then, is to show the way in which some of these background assumptions bleed into theory, so that the success or plausibility of certain theoretical claims depends on our adopting certain views about the nature of human action and human moral agency. My analysis centres on Hart’s statement of law as essentially a system of rules. Formally, Hart and others acknowledge that this account speaks to a certain view of the capacities of legal subjects: it presupposes, minimally, that they are rational agents capable of understanding and responding to norms. One reason that contemporary positivists have tended to neglect the ontological levels of their theory, I think, is that such a claim seems rather underwhelming: against the fully articulated ontologies of the classical positivists and natural lawyers, the observation that people follow rules in their acting does not seem a very robust or interesting statement of human nature. My claim is that the conception of human beings implied by the rule-based model is bound up with logical consequences at various levels of theory, as the view of agency it puts forth places explanatory pressures on the form that descriptions of law and legal practice can take. I 3 See, e.g., H.L.A. Hart, “Legal Duty and Obligation,” in Essays on Bentham (Oxford: Clarendon Press, 1982), 159-161, and his review of Williams’ book Ethics and the Limits of Philosophy: “Who Can Tell Right From Wrong?,” New York Review of Books (17 July, 1986). 4 Hart, “Positivism and the Separation of Law and Morality,” Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983), 83-4. This is because the question of the cognitive status or objective standing of moral values bears only on the question of whether the immorality or stupidity of these law could be rationally demonstrated. 5 Hart, CL (Oxford: Clarendon Press, 1961), 187. In The Morality of Law, Lon Fuller notes that Hart probably overestimated how uncontroversial the claim that the “[p]roper end of human activity is survival.” As he writes: “This, I think, cannot be accepted. As Thomas Aquinas remarked long ago, if the highest aim of a captain were to preserve his ship, he would keep it in port forever.” Lon Fuller, The Morality of Law (New Haven: Yale University Press, 1969), 185. 2 Ph.D. Thesis - J. Murphy; McMaster University - Philosophy suggest that contemporary positivists have for the most part failed to follow through on the implications of the theory’s ontology, in particular as it competes with other conceptions of the nature of human agency. Before moving on to chapter overview, we might note that it is not difficult to see why Hart, in his concern for the descriptive accuracy and generality of his theory, would seek to minimise his reliance on any robust conception of persons. Apart from being inevitably contentious, such claims will seem to spoil the neutrality of theory, by building into one’s account of law presuppositions about human needs and interests which the practice is meant to serve. Where a theory of law is strongly informed by an account of what human beings are like, there will be substantial overlap between the factual and the normative elements of theory – between the description of what law is and the ideal for what it ought to be – because the conception of human nature it puts forth will have implications for our understanding of law’s purpose or value in human life. Thus we might think that the mistake of the early positivists, such as Hobbes and Bentham, was precisely to build into their accounts too robust a notion of human nature and the state of human collective existence: the view of the human condition as one of conflict and compromise among atomistic beings gives rise to an understanding of law’s proper function as one of restraining people in their more anti-social tendencies, i.e., as channeling or re-directing self-interest through the application of sanctions. I argue that contemporary rule-based positivism also rests upon a robust view of human nature: a conception of people as active, meaning-giving, and free. The second half of this dissertation argues that this view of people comes with its own set of logical implications for determining law’s value. Chapter Overview Chapter one begins by examining Hart’s rejection of early positivist analyses of law in terms of threats and sanctions. On the typical recounting of Hart’s critique, the conflict between rule-based and sanction-based accounts of legal duty is seen as one purely at the level of substantive theory, i.e., as competing accounts of the same legal 3