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Straightforwardly False: The Collapse of Kramer’s Positivism

Published online by Cambridge University Press:  14 April 2004

N.E. Simmonds
N.E. Simmonds*
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University of Cambridge
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The Cambridge Law Journal , Volume 63 , Issue 1 , 27 March 2004 , pp. 98 - 131
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Copyright © Cambridge Law Journal and Contributors 2004

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References

Notes

1 Fuller, Lon, The Morality of Law, revised edition (New Haven 1969), pp. 209-210.Google Scholar

2 Kramer, “On the Moral Status of the Rule of Law”, above p. 65.

3 Throughout this essay I follow Kramer in his focus upon interest-dependent prudential reasons; I also assume for present purposes the soundness of the conventional contrast between moral and prudential reasons.

4 Kramer, Matthew H., In Defense of Legal Positivism (Oxford 1999), p. 69.Google Scholar

5 N.E. Simmonds, Central Issues in Jurisprudence, second edition (London 2002), p. 231.

6 In my original discussion of Kramer I describe him as claiming that incentives for compliance will be “undermined” by departures from the rule of law. Kramer objects to my use of the word “undermine” in preference to his favoured terms (“sap” and “weaken”), feeling that it misrepresents his position by suggesting a complete removal or negation of incentives. I consider this objection to be wholly groundless, since undermining (an activity carried out by “sappers”!) can consist in the removal of part of a foundation as well as the removal of the totality, and the substance of Kramer's argument embodies both possibilities. Nevertheless I will respect Kramer's preferred terminology in what follows.

7 Some readers may consider it odd to speak of “punishment” where no legal prohibition has been violated. I am, however, simply following Kramer's own usage (a usage which strikes me as entirely sensible given the particular context of this discussion). When no published prospective rule has been violated, I will sometimes speak of “punishment”, and sometimes simply of “violence” or “brutality”.

8 Central Issues in Jurisprudence, chap. 7. In the second edition of my book I should perhaps have made clearer the fact that I no longer place reliance upon one argument from the first edition of my book, an argument that Kramer discusses in his present essay as the “First Strand” of my retort. The argument is not wholly unsound, but it raises complexities that I now see to be unnecessary in the light of my later argument (which Kramer describes as the “Second Strand”). At the time of writing the second edition of my book, I considered wholly withdrawing the earlier argument; but I felt that there was a little more to say, and so I let it stand alongside my later argument, noting only that there were grounds on which Kramer could reject it. I now see that my failure wholly to suppress the argument was an error which has led to avoidable confusion.

9 Kramer, “On the Moral Status of the Rule of Law”, p. 83.

10 Rapidly changing laws would also violate one of the precepts of the rule of law acknowledged by Kramer.

11 As laws become more general and “catch-all” in character, an obvious question arises as to whether they really create followable rules in such a way as to comply with the requirements of the rule of law acknowledged by Kramer. I can afford to set this issue on one side, however.

12 Central Issues in Jurisprudence, p. 226.

13 I am, of course, not suggesting that these are the only options: one could dismiss the existing judges and replace them, for example. My point is simply that considerations of this sort will often serve to strengthen a more general case for reliance upon Party thugs rather than judges.

14 In Defense of Legal Positivism, p. 69.

15 See note 7 above.

16 Kramer, “On the Moral Status of the Rule of Law”, p. 86. Like Kramer, I here ignore variation in the gravity of punishment.

17 Central Issues in Jurisprudence, p. 232. This passage is quoted but not grasped by Kramer, for he persistently fails to notice that the beating consequent upon failure to comply with the published rules will be an additional beating. His confusion is evident at p. 88 (penultimate sentence) where he speaks of Joe suffering “that” beating if he complies, the word “that” referring back to the beating Joe will receive if he does not comply.

18 Simmonds, loc. cit.

19 In Defense of Legal Positivism, p. 238.

20 “On the Moral Status of the Rule of Law” p. 88.

21 “On the Moral Status of the Rule of Law” p. 81.

22 Indeed, this may be true of those modern liberal regimes that fail to gather accurate information about persons resident within their territory because they wish to avoid the accusation that they constitute a “police state”. Those who assume in this way that the collection of information by government is somehow incompatible with liberalism might like to remember that the most eloquent defence of police state techniques for evidence gathering is to be found in one of the classic texts of liberal political theory. See J.G. Fichte, Foundations of Natural Right, edited by F. Neuhouser, translated by M. Baur (Cambridge 2000), pp. 254-263.

23 “On the Moral Status of the Rule of Law” p. 65.

24 “On the Moral Status of the Rule of Law” pp. 83-84.

25 “On the Moral Status of the Rule of Law” p. 65.

26 Lon Fuller, The Morality of Law.

27 In The Morality of Law, Lon Fuller seems to take the view that perfect compliance with the eight “principles” of the rule of law is impossible in the circumstances of the real world. Thus, he tells us that the idea of perfect compliance with the eight principles “is not actually a useful target for guiding the impulse towards legality”, and (at another point) that “the utopia of legality cannot be viewed as a situation in which each desideratum of the law's special morality is realised to perfection.” (Fuller, The Morality of Law, pp. 41, 45). An Aristotelian in this respect as in so many others, Fuller presumably thinks that we need the never-fully-articulable wisdom of the phronimos if we are to see what the rule of law requires in particular sets of circumstances.

28 In Defense of Legal Positivism, p. 62.

29 In Defense of Legal Positivism, p. 238.

30 John Finnis, Natural Law and Natural Rights (Oxford 1980), chap. 1.

31 In Defense of Legal Positivism, p. 236.

32 “On the Moral Status of the Rule of Law” p. 83.

33 In Defense of Legal Positivism, p. 3.

34 In Defense of Legal Positivism, p. 67.

35 In Defense of Legal Positivism, p. 11.

36 “On the Moral Status of the Rule of Law” p. 74.

37 “On the Moral Status of the Rule of Law” p. 75.

38 “On the Moral Status of the Rule of Law” p. 74.

39 In suggesting that Kramer's thesis (on the threshold reading) is trivial, I am of course not conceding that (on that reading) it is true. Given the triviality of the thesis, its truth or falsehood does not greatly concern me. Nevertheless, I feel that it would be hard to argue that a regime that extensively employs violence against law-abiding citizens is a clear and nonmarginal instance of what Kramer calls “the rule of law”. Kramer's adamant insistence upon his “sapping of incentives” argument presumably reflects his awareness of this fact.

40 Simmonds, “Rights at the Cutting Edge” in Kramer, Simmonds and Steiner, A Debate Over Rights, (Oxford 1998). I add some important further refinements to my analysis in Central Issues in Jurisprudence, second edition, chap. 8.

41 Simmonds, “Rights at the Cutting Edge”, pp. 187-195.

42 H.L.A. Hart, Essays on Bentham (Oxford 1982), chap. 7.

43 Simmonds, “Rights at the Cutting Edge”, p. 167. The (sound) thesis that liberties must always be protected by some claim-rights should not be confused with the erroneous claim made by Joseph Raz, to the effect that assertions of entitlement are always invocations of a duty not to interfere, and never simple assertions of the absence of a duty to act. For a brief refutation of Raz's claim, see Central Issues in Jurisprudence, p. 290.

44 Hohfeldian liberties to perform an action consist simply in the absence of a duty not to perform the action. Bilateral Hohfeldian liberties consist of a liberty to perform a certain action combined with a liberty not to perform it. Domains of optional conduct are constituted by bilateral Hohfeldian liberties. When such domains are effectively protected against violent or coercive interference, we may speak of them as domains of liberty.

45 New Monia is an imaginary society that is benevolent but does not observe the rule of law. See Central Issues in Jurisprudence, pp. 244-247.

46 Sen, Amartya, Rationality and Freedom (Cambridge, Mass. 2002), p. 9.Google Scholar

47 Bernard Williams, “Liberalism and Loss” in The Legacy of Isaiah Berlin, edited by Ronald Dworkin, Mark Lilla, and Robert B. Silvers (New York 2001), p. 92.

48 Might they be dependent upon the will of a sovereign law-maker? One has to remember that rules must be prospective, and must not be subject to constant changes. Consequently, the law may at any time conflict with the present will of the sovereign law-maker.

49 “On the Moral Status of the Rule of Law” p. 96.

50 See Kramer, The Quality of Freedom (Oxford 2003).

51 I would like to thank June Chappell and Amanda Perreau-Saussine for their valuable comments on an earlier version of this essay.