Posted: July 15, 2014
A review of A Theory of Law, by Philip Soper
rofessor Soper's A Theory of Law is a marvel of Bauhaus moral architecture: ugly and unedifying, bloodless and indifferent to how people actually live and to what they believe. This book should therefore be well received in American university philosophy departments and intellectually progressive law schools.
Legal theory, which Professor Soper defines is "that body of speculative thought about the nature of law that has dominated analytical jurisprudence since John Austin's lectures on the subject a century and a half ago" (p. 1), has reached a "dead end." It has become meaningless insofar as legal theorists have merely described the concept of a legal system properly so-called, without also explaining why anyone should pay attention to their speculations.
Soper's intention is two-fold: to make legal theory's refined conceptual analyses moral rather than narrowly epistemological and to elevate thought about law above mere self-interested attention to coercion. He claims that legal theory can be made useful "by connecting it to issues in moral and political philosophy" (p. vii). Legal theory's fundamental question is: "What is law that I should obey it?" Answers to this question both illuminate and are illuminated by answers to the corresponding question of political philosophy. "Why should I, or anyone, obey the state?" (p. 7).
Perhaps Soper's theory is "moral" by the standards of contemporary analytical philosophy. Yet it is finally so otherworldly as to be only another intellectual exercise. At best, Soper connects the abstract, formal theories of one side of a philosophy department to the abstract, formal theories of another. He expressly excludes the practical effects of laws, of the distinctions among regimes, and of substantive notions of justice. Such considerations are irrelevant-inconvenient-to his task of defining a moral legal system. One wonders why he even mentions politics.
According to Soper, we are morally obligated-rather than merely coercively obliged-to obey the law if two conditions are met. First, officials must believe in good faith that their legal system serves everyone's good, such that they can give reasons for dissenters to obey! Second, they must provide effective minimal security, because any law serves public and individual interest better than no law at all (see, e.g., pp. 86-89).
What matters is not the factual questions of whether or to what extent their laws are just or serve the public good. People disagree on those too much for them to be useful to conceptual moral theorizing. Rather, the question is reduced to the sincerity with which officials believe in the justice of their actions. Citizens and officials have a reciprocal bond that holds the system together. The stronger the official commitment to some arguably moral purpose, the greater the resulting obligation. According to Soper's few allusions to something like human nature, it all works because we are all autonomous moral beings who respect other autonomous moral beings. Thus, we acknowledge our rulers' earnest efforts by feeling obligated.
Soper, to be sure, disapproves of tyrannies, citing Nazi Germany, Tsarist(!) Russia, and South Africa. However, it is not because institutionalized slavery is intrinsically wrong. "[E]ven slaves," he says, "have a prima facie obligation to obey" the laws whenever their rulers "sincerely believe such treatment can be morally justified" (pp. 122, 183 n. 17). Rather, it is because the "people in charge" (his typically all-embracing label) could not possibly be sincere about such regimes' "rationality and justice."
That the outrageous should be treated so coolly, even for purposes of argument, suggests that in his quest for formal rigor and comprehensiveness, Professor Soper has missed something. He has ignored the very human-very political-distinction between the necessary and the good, between what circumstances may demand and what we ought most to desire.
To seek to understand law by reference to political philosophy is commendable, if only to discover that a decent political order may require that laws and officials take for granted the goodness of their fundamental principles rather than invite perpetual debate and revolution over light and transient causes. In trying to answer the question of how men ought to live, it makes eminent sense to suppose that good laws in a good regime will help make good men. That effort requires a philosophic understanding of good laws, of good regimes, and of the human good itself.
These Professor Soper does not address. He insists that what matters is the form of "law," "legal system," and "moral obligation," instead of the purposes of particular laws, the ways the laws actually make a regime good, and the conditions for the exercise of the virtues.
Professor Soper is fair-minded enough to admit repeatedly that other theories could be as conclusive and persuasive as his. Such even-handedness, like his neutrality toward regimes, implies that everything is open to debate and ought to be debated-nicely. Appropriately, the only right that Soper calls "natural" is "the right to discourse." We are all basically loving, giving, caring, sharing individuals, and if we and our officials can talk out our differences, we will feel obligated and so will they. Because we are reasonable beings, official sincerity can be tested by discussion. Nonetheless, the officials will still have the guns when sweet reason fails to persuade the dissenters.
Soper's arguments suppose that since people widely disagree about "values," we can make our world as we will; we are fundamentally free. Equally confused, we establish moral principles on things to which we all can agree: rational, substantively neutral, and formal principles, and the fact that everyone believes in values whose truth cannot be proven but whose existence ought to be respected.
But if the world is essentially negotiable, why believe anything rather than nothing? Soper closes his book with an ambivalent consideration of the nihilistic implications of his theory. He does not attempt to refute the nihilist's denial of the value of having values. Instead, he notes the fact that some kind of theory can be built on the mere fact that people have them. The theory appears to be in the nature of a placebo: "[I]t is important to people to believe in the reality of value judgments; and one way this faith is maintained is by investing concepts that refer to the most basic social phenomena with a moral meaning" (p. 159).
That may be a sound enough observation in an age of doubt, but it is an admittedly empirical one that suggests that law should be understood in the light of ideology rather than of political philosophy. Nihilism renders suspect the whole conceptualist enterprise and gets, as it were, the last word in Soper's project. Why then make the effort?
The answer appears to be rather mundane: Soper wants to be useful. His advice to the ordinary citizen is to obey the regime, whatever it is, whether one is obligated or obliged. That is fair enough, and refreshing in an era that reveres civil disobedience for its own sake.
Soper's legal theory-like most American legal thought for a century-rationalizes unguided judicial activism as the application of principles philosophically superior to the Constitution's. Courts, after all, are "primarily . . . justificatory organs." They are supposed to give rational, normative arguments for our obligation to the regnant legal order (pp. 112-17). And they will enforce their edicts. But if the reasons for that order are equally arbitrary, as Soper says, then there is no reason to prefer one brand of democracy-liberal, social, or proletarian-over another. It does not matter which we have so long as the officials are enlightened, sincere, and powerful.
The Founders may have failed to rise above empiricism and the painful necessity of the rule of men by men. But they at least discovered how to create a stable and decent republic. What is more to the point, they did it without reference to the higher wisdom of analytical philosophy a la Professor Soper. If the perpetuation of American democracy requires willful judicial insincerity and conceptual messiness, rather than official sincerity and formal rigor, so be it. Perhaps that is as close to political perfection as mortals may attain.