Legal History, its Methodology, and its Philosophical Implications: Part II

PART II of III
The Illusion of an Analytical and Normative Divide in History and Law

In Part I of this series, I claimed that law is a normative enterprise.  Of course, I realize that this may a controversial claim, depending on my intended sense of normativity.  Many theorists have dedicated their academic careers to distinguishing law from other rule-based categories such as morality.  They claim that law need not be normative in any pre-determined sense.  I admit that the term is loaded and presents an immediate ambiguity that needs to be resolved.  What do I mean, precisely, by claiming that law is “normative”?

I do not mean normative in the experiential sense, i.e., that law demands compliance with respect to individual human behavior.  I do believe this to be true, but I am more concerned with the question of whether the content of law needs to be pre-determined, at least in a provisional sense.  As I see it, law is like any other subset of rules.  It is normative because it is necessarily concerned with how its content ought to be designed (or, on a Hayekian view, how it should be permitted to spontaneously emerge) and how it ought to be enforced.  There are objective standards for what constitutes a good law versus a bad one.  Personally, I believe these standards to be based in morality, but they can premised on any number of things, as I hope to demonstrate.

H.L.A. Hart
(1907-1992)

H.L.A. Hart, the preeminent analytical legal philosopher of the 20th century, argued in his magnum opus, The Concept of Law, that jurisprudence, as was practiced by Blackstone in the Anglo-American tradition and the Scholastics on the Continent, could be distinguished from law qua analytical jurisprudential science.  Legal theory, for Hart, could only concern itself with a descriptive account of what special social rules — or laws — governed any given political society.  It is not the job of the legal theorist, on Hart’s view, to concern himself with whether the observed rules in that political society are “true” in a metaphysical sense.

But therein lies the problem with positivism and even more extreme non-Hartian theories such as American legal realism.  They all fail to successfully divorce law from the “thick” sense of normativity that I seek to identify.  Let me explain.  It is true, for example, that Hart is able to separate law and morality in an immediate sense; it may be the case that the content of a legal system is not dependent on the content of its public morality: the laws of country X need not be, as a matter of necessity, judged by the moral code of the majority of X’s inhabitants (or perhaps even the morality of a minority!).  On the Hartian account, law becomes something more indeterminate.  As the Realist might claim, it becomes simply the result of the political pragmatism of government actors: legislators, judges, etc.

Yet, even the positivist cannot escape the second aspect of normativity that inheres in the law.  While legal validity may no longer be premised on morality, it is instead judged “good” according to social fact, whether that “fact” be pedigree, or the consensual compliance of a majority of legal officials, or any other number of alternative bases.  For law to be a distinct category of political phenomenon, it must be standardized, it must conform to something.  For the natural lawyer, the positive law possess legality, or obliges its subjects, only when conforming to a moralized conception of justice; for the Hartian, it must emerge in compliance with the union of secondary and primary rules, and according to a rule of recognition; and for the “hard” positivist, it must have been the product of a legitimate legislative process, etc.

The illusion of a divide between the analytical and the normative abounds in the law. The foremost example in our own legal system is the concept of “due process” in the United States Constitution.  For many conservatives and legal positivists, “due process” of law is purely procedural, or “analytical”: it represents a set of factual conditions that are either met or are not met.  On the other hand, especially for more progressively-minded persons, “due process” has a substantive content that is independent of procedure.  On this latter view, it should not be enough, for example, that a state government exhaust the proper political channels for overriding a constitutional right, since there are certain realms of human action that should, at the theoretical level, simply be outside the reach of government.  Throwing “process” as a legitimating device, at certain laws will never be able to legally justify their (potentially) illegitimate force.

Ultimately, I think that the distinction between process and substance is much ado about nothing.  Without a theoretical understanding of the demands of process — a substantive theory, that is — it would be impossible to adjudicate challenges under the Fifth and Fourteenth Amendments.  And without some objective procedural standards, it would be difficult to determine when the substantive demands of the law have, or have not, been met.  The two go together.

I see many similarities between this aspect of law’s normativity and the other humane sciences, including history.  Can history be an “objective,” or “unbiased” science of description?  Or does it require a deeper, philosophically-informed substance or content?  In other words, to what extent can (or do) historical propositions represent something more than unloaded factual claims as to what has transpired, objectively-speaking, in the past?

Georg W. F. Hegel
(1770-1830)

I do not mean to claim that history is an impossible field; that we cannot accurately understand the events of the past in some “neutral” form.  At the same time, all history contains a number of subjective elements.  Historical actors will each have their own experiences of reality, and will relate them in different ways.  Historians themselves, based on their own experiences and their own methodologies, will interpret history in divers ways and with diverse results.  Critical methods, revisionism, and alternative histories, such the narrative approach, help to develop this complexity of “doing” history and better understanding the past.

What I am claiming is that “history” cannot be divorced from the historian — its content, like the rules comprising a legal system, are derived according to certain principles that animate the historian.  While this might strike some as hopeless relativism, I do not mean to deny, again, the existence of historical reality — that certain events have transpired in certain ways — or to express unabashed skepticism as to the possibility of disinterested historical methodology accessing that reality.  Rather, I believe it is exceedingly difficulty to achieve an objective, unbiased account of such events.  There is as much room for the historian who tries to approach the past from the difficult position of the unbiased observer, as there is room for the historian who seeks to use history in an instrumental way for some other end.  As Hegel once remarked: Weltgeschichte ist das Weltgericht.  We should not be afraid to embrace history as our judge, as we understand it to be, and to use it in achieving moral (and legal) progress.

Part III will be published within the next week or two.