CFLPP Public Lecture: 'Law, the Rule of Law, & Goodness-Fixing Kinds'

The Cambridge Forum for Legal & Political Philosophy will host a public lecture on Wednesday, November 15th, at 5:00pm, in Room B16.  The lecture, 'Law, the Rule of Law, and Goodness-Fixing Kinds,' will be delivered by Professor Emad Atiq of the Cornell University Philosophy Department.

Abstract: We can evaluate laws as better or worse relative to different normative standards. One might lament the fact that a law violates human rights or, in a different register, marvel at its ease of application. A question in legal philosophy is whether some standards for evaluating laws are fixed by—or grounded in—the very nature of law. I take Raz’s (1977, 2019) discussion of the distinctively legal virtues, those that fall under the rubric of the “Rule of Law” such as clarity, generality, and non-retroactivity, as my starting point for exploring a very general puzzle about the relationship between law’s essence and its virtue.

The claim that there are some virtues that laws have qua laws invites a comparison between law and other “goodness-fixing kinds” (Thomson 2008). A kind is goodness-fixing if what it is to be a member of the kind fixes a standard for evaluating instances as better or worse. For example, if an object belongs to the kind clock, whether it keeps time accurately provides a basis for evaluating it as better or worse as a clock. Furthermore, the relevant normative fact—if a clock does not keep time accurately, it is a bad clock—is at least partly explainable in terms of the nature of clocks (clocks are things that are supposed to be keep time accurately). Hence, for any goodness-fixing kind, K, that sets a standard, S, for evaluating Ks as Ks, we can ask:

• How does the nature of Ks explain S?
• Does being a K depend on meeting a minimum threshold of S-relative goodness?

In the case of law and its constitutive standard defined by the Rule-of-Law virtues, these questions lack settled answers. Although Raz offers some discussion, I argue that his answers have the surprising upshot of rendering law sui generis relative to other goodness-fixing kinds, and that preserving continuity with other goodness-fixing kinds involves revising the general picture.

Here’s how the discussion proceeds. §1 begins with the observation that the existence of constitutive standards of evaluation for laws attracts extraordinary consensus within legal philosophy. §2 examines Raz’s influential explanation of such standards: law’s existence creates opportunities for certain wrongs (e.g., the arbitrary use of power) that the Rule-of-Law virtues uniquely mitigate. After highlighting the ways this account conflicts with general principles of explanation, modality, existence, and persistence that plausibly govern goodness-fixing kinds, I argue that we should aim for an account of law’s virtue that treats law as less exceptional. §3 explores the prospects of such an account within the constraints of Raz’s broadly positivist assumptions about law’s nature. I argue that the desired account of law’s own virtue is to be found in the normative assumptions that are implicit in the way that law, unlike other forms of social organization, is socially embraced. However, this account entails amending, albeit not too drastically, the standard positivist framework.