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Episode 17: Jurisprudence Part 1 / January 29, 2021

With Dr. Emilios Christodoulidis

Hosted by Jasmine Hunt Keir Aitken

Edited by Constantinos Stylianou

Posted in Main feed Philosophy of Law

In this first episode of two, we are joined by the Chair of Jurisprudence at the University of Glasgow, Dr. Emilios Christodoulidis, who shares his thoughts with us on the philosophy of law.

We discuss 'what is the law?', we look at the connection between law and justice, and between law and morality (legal Positivism vs. Natural law). We visit the peculiarities of legal reasoning, the connection to rights and values, and with an emphasis on the philosophy of language also on how the law both abhors and deploys ambiguity.


Timestamps:

01:01 - What is Jurisprudence?

02:06 - How do we produce legal reasoning?

03:39 - Explanation of the containment of law and how they are not to be politically or morally mandated

04:30 - Is there a moral aspect to law? How can there not be a moral aspect to law?

05:26 - Explanation of positivism and natural law - ‘is’ vs. ‘ought’.

08:22 - What values and principles are involved in decision making with regard to the law?

11:05 - Discussion of the linguistic question of semantic disagreement, the pragmatic use of language and how this is contested with regard to legal practice


Transcript:

Emilios Christodoulidis: Sorry, I could go on and on about this… [laughter]

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Keir Aitken: Hello everyone, and welcome back to another episode of Thoughts. My name is Keir.

Jasmine Hunt: And my name is Jasmine.

KA: And today on the show, we have Emilios Christodoulidis, who is a professor at the University of Glasgow and who works on jurisprudence, which in simpler terms is the philosophy of law. This episode will be the first of two episodes on jurisprudence that we will be recording, as 20 minutes just wasn’t enough time for us to spend picking Emilios’ brain on what is really a huge and deeply interesting topic within philosophy. Here are some Thoughts on the philosophy of law.

KA: Emilios, thanks for coming on the show.

Emilios Christodoulidis: Well, thank you very much, Keir. Thank you very much, Jasmine. I’m delighted to be on the show.

KA: So, to start us off, could you just tell us what is jurisprudence?

EC: Jurisprudence is a term we use typically in the Anglo-American academy. Everywhere else, it’s called philosophy of law. And it very much has to do with the way we understand the function of law, the way we understand and talk about how we reason in law, in terms of how judges take decisions, how lawyers think about the law, how students think about the law. So, the processes of reasoning. Legal reasoning is a key aspect of jurisprudence, as is the relation between law and other spheres of social action, like the economy, like politics, like education. How does law connect or articulate to these other spheres? So, those are very important aspects, if you like, of jurisprudence as we teach it. And of course, where one puts the emphasis, what particular area one deepens in, is very much a matter of choice.

JH: Fantastic. So, you mentioned legal reasoning. How do we produce legal decision making? How do we make a decision in law? It seems like a massive thing to do.

EC: Well, it is, and in fact, legal reasoning can be seen as quite a technical area. But I think that properly understood, it is actually a very complex area that goes way beyond the technicality of the years of legal language and the years of legal rules, because ultimately it is a form of practical reasoning. And there is a very long tradition of thinking about practical reasoning that goes back at least to Ancient Greece, and this idea of what might be an appropriate judgement. So, given we are always reasoning in particular contexts, what does it mean to reason appropriately and to deliver a decision that is appropriate to the concrete case that is before us? It’s the field that is clearly delimited and contained. We can talk a little bit more about that, but it’s delimited and contained in terms of within an institutional structure, within an institutional set of reasons that are meant to determine outcomes. And yet, at the same time, because law is such an important institution, it also links up with issues of politics, and of course, clearly issues of justice.

KA: Just to clarify, what do you mean by “the law is delimited and contained”?

EC: Well, I mean, one of the key ideals of the connect with the law, which sometimes we call the ‘rule of law’, is that we want our decisions and law to be warranted by rules or reasons which are already contained in the body of the law. We don’t want the judge to be making up the law as he or she goes along. So, there is an element of containment there. We want the legal answers to be contained within the law. Not to be politically mandated, not to be morally or otherwise influenced. Why? Because we think that the rule of law is very much about giving us particular and stable expectations, what’s expected of us, how we should act and all that. So, in that sense, containment, yeah? In the sense that it’s just kept within its own special sphere of thinking.

JH: So, how can there not be a moral aspect to law?

EC: Yes, no, that’s a very good question, and it’s actually a question that has divided legal theorists. Because of course, at some level, we expect the law to be just, huh? We expect the law to be delivering justice.

KA: Of course.

EC: And sometimes, if you bracket the question of morality or you bracket the question of politics, and we only focus on legal technical reasoning, the law may produce results that are highly unjust. So, the connection between law and justice, the question of whether there is a necessary connection between law and justice, is key and does divide legal theorists. It divides them into what’s traditionally has been seen as the clash between ‘positivism’ and ‘natural law’.

KA: What do you mean by positivism and what do you mean by natural law?

EC: Okay, so, positivism is the idea that law is positive. It is laid down. It exists as a matter of social fact. You can find it. You can find it in the House of Parliament, you can find it in judicial decisions. And what you need to be able to do is identify it properly. You can find it not just in those two sources of law; you can find it in custom, you can find it in treaties. But lawyers know where to look for these things, and one of the things you do as part of your law degree is to identify what the sources of valid law are. So, this is the idea of positivism, and clearly with positivism, you have a separation between what the law is and the question of what the law ought to be. So, you might say as a positivist, look, I can tell you what the law is, but the question of whether I agree with that content is a separate question and it should be kept separate. So, the ‘is’ question and the ‘ought’ question, again, as philosophers, you know we make a great deal about this distinction.

JH: [chuckle]

EC: For the natural law position, the questions cannot be kept apart. So, a question of identifying the law always brings in questions of evaluation. And therefore, questions of a normative kind. Questions that have to do with the ‘ought’. And again, just since you ask the question of positivism and natural law, it’s wrong to say it is a stand-off between two positions. These oppositions that, in the history of ideas, have very very long genealogies, huh? So, the natural law position goes back again to Ancient Greece, but long before Aristotle, you know? You have the natural philosophers of the 6th century who talked about nomos, the word for law, and physis, the word for nature, as being aligned with each other. So, for them, the law we had as citizens reflected something profound about the natural world, you know? The cosmic order within which we found ourselves. And that carries through, you know, it carries through. Famously with Antigone. You know, Antigone where tragedy says against Creon, he says, I’m not interested in your positive law, I’m interested in natural law, you know, the laws of the gods. Sorry, I could go on and on about this. [chuckle]

JH: [chuckle]

EC: I should stop.

KA: No, not at all. Thank you for going on. That’s what you’re here for.

JH: Yeah. [chuckle]

KA: [To clarify that…?] So, you’ve got this natural law where there’s a necessary connection between the law and justice, and it is the law because it is right. And that seems to make sense to me. And then you’ve got positivism here, which is like, the law is the law because someone has posited it. Someone has decided that that is the law.

EC: Yeah.

KA: But if we are avoiding any politically or morally mandated reasoning behind the law, as a positivist may do, what values and principles are involved in that decision-making?

EC: Well, one of the arguments that positivists are making is once you go into the areas of values and principles, you go into subjectivism and everyone has their own. One doesn’t have to go down that route. There is no necessary connection between the normative questions and questions of, you know, relativism and subjectivism. For Antigone, for example, there was no question of subjective choice. It was about the laws that mandated from [time in?] memorial that we have to bury the dead. Though there is a kind of sense in which there are certain values, perhaps, that we share as human beings that have a direct impact on the law, and to say that this shouldn’t be there, it completely misunderstands law as an institution.

So, if you move forward and you fast-forward, and you have of course the great positivist moment when you have the great codifications, et cetera, law that is clearly posited by the law-maker, you reach the Second World War, for example, just to give you one instance where it becomes very evident where there is a direct recourse back to natural law. Why? Because suddenly, humanity’s faced with an extraordinary prosecution that was mandated by a law that was positive. And the tribunal is set up in Nuremburg to try the Nazi perpetrators of the war. Those who perpetuated extraordinary atrocities, and of course, tried to implement the Final Solution. And the problem they face at Nuremburg is that they cannot be positivists, because if they’re positivists, they have to recognise that the Nazis acted under a law that was valid. And if validify is the only thing that matters, how would you condemn them - as they did - for a crime that the Nazis did not commit, because they could not have committed it because it comes about after the war from the UN Declaration? Okay, which is the crime against humanity? So, the Nazis are condemned for the crime against humanity, which is in fact enacted in 1945. So, as a positivist, you have to say that this is not a legal solution. It may be a moral solution, but not a legal solution. And that’s where natural law reappears, in moments like that. And it reappears again with human rights, which is very much around us now, which is again the moment of natural law. Yeah?

KA: Yeah, that was a really good explanation.

JH: So, if the positivist claims that a law is a law not because it has moral backing, but simply because someone wrote it down, surely there must be a level of ambiguity in the wording and interpretation of laws?

EC: Yes, I think that’s absolutely right, and in fact, one of the most important areas in the philosophy of law, and in particular legal reasoning, has to do precisely with the philosophy of language. And the philosophy of language is very important. It has made a huge impact on the philosophy of law. Because you’re absolutely right, because when something is positive, when something is an act of parliament or whether it’s a judicial decision, it’s couched in language and there’s going to be ambiguity.

Now, of course, this law is in part at least a technical language, and the positivist will say, yes, but first of all, we’ve become very good at legislative drafting. You know, we can iron out ambiguities at the level of drafting. Okay, if you’re a common lawyer, you have a bit of a problem because judges also make law through precedent. But then again, the idea is that meanings are tested and settled gradually in legal decisions, so again, we have ambiguities ironed out. And yet - and yet - somehow it persists. And it persists because of course, ambiguity cannot be ironed out. And this comes perhaps most spectacularly onto the scene of jurisprudence with a very important book written by Herbert Hart, who was a professor of jurisprudence at Oxford, a very famous Chair of Jurisprudence at Oxford who wrote a book in 1963, possibly the most important book in jurisprudence even today, entitled “The Concept of Law”.

Hart had read Wittgenstein - in fact he probably knew Wittgenstein - and what he brings into the discussion of jurisprudence is Wittgenstein’s hugely important insight in the later work, that the meaning in language is tied to use. And if meaning is tied to use, the pragmatic dimension of language, then there is inevitably a slippage of meaning, and no matter how hard we try to contain that slippage, it is implicit in language and therefore it cannot be done away with. So, the ambiguity is intrinsic. It is endemic, if you like, in all uses of language. Now, Hart uses this example that I think is a really nice example. Hart says, look, take any… take the simplest rule and let’s forget the very difficult rules. Take a simple rule in the park, you know, the sign up that says, “No vehicles in the park”. It’s a by-law. It’s a valid law. And clearly, if you drive your car through the park, you have clearly violated that law. But, and says Hart: look, there’s always going to be in language a grey area, and in this grey area there’s going to be ambiguity. So, if you have, he calls it, ‘the core of settled meaning and the penumbra of doubt’, he says, for the purpose of the law, the car is a clear instance of a vehicle. But if you enter the park with roller skates, you’re in that grey area where perhaps there is ambiguity. So, perhaps the law applies to you, but perhaps it does not.

Okay, so that’s Hart’s great insight. Now, the problem with this insight is that it doesn’t take you very far. And this kind of semantic approach of Hart’s has been contested, and I think contested really persuasively, by those that argue that look, there is something that goes beyond a linguistic argument and has to do with the nature of law as a practice, a practice that brings its own purposes. So, let me give you a counterexample to Hart. Let’s say that you don’t drive a car through the park, and you don’t use your roller skates, but you carry- you take a push chair into the park. Now, of course, a push chair is a vehicle. What competent user of the English language would not call a push chair a vehicle? And yet, it would be crazy to say that the mother who’s pushing a push chair through the park is violating the law. How do I understand this? I understand this because there is a purpose behind the law, and it is in the light of that purpose that the law has to be interpreted. And the purpose of the law, we may disagree about this, but from the simple case it might be we want to protect the safety of children, and clearly pushing a push chair though the park is not considered dangerous. Now, do you see the point? Do you see the point about how a linguistic question, a question of semantic disagreement, a question that allows in the pragmatic use of language, then becomes contested by those who say, no, no, law does not simply import these discussions from outside; there is something very particular about legal practice that has its own rationale?

JH: So, the thing that allows you to interpret law reasonably, then, is by attaching to a purpose? It’s sort of giving it context? Is that…

EC: Yeah. So, that would be one argument against simply transferring insights from the philosophy of language directly into law. Of course, they’re hugely important, but look how much more complex it becomes once you take on board the nature of the laws as an enterprise, as a practical reasoning.

JH: Mm-hmm.

KA: Well, I think that’s a really important thing to bring up. That the nature of law, that it is going to be practiced and it is pragmatic. And on this podcast, and I think philosophy in general, we should have that view, as well. That we are doing these explorations of theory for a purpose. And that is actually what we’re going to explore next time on our second episode with Emilios. Thank you very much for being here.

JH: Thank you.

EC: Thank you very much.

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JH: Thank you for joining us on today’s episode. We hope you enjoyed it.

KA: And don’t forget to follow us on all of our social medias. ‘Til next time, thanks for joining.

Transcript written by Monique Raranga