This is a book which is appropriately ambitious in setting the exploration of legal rights in a far wider setting. It encompasses a general understanding of law and the nature of theoretical investigation (or philosophical reflection) on law and its relationships with the moral and political realms.
Pavlos Eleftheriadis brings lucidity and learning to the topics that are carefully combined in pursuit of his project, and he illuminates much with the insights which punctuate his discussion. However, I shall focus on what gives the work its ambitious and expansive character. From the opening pages of the preface, where he signals his aim to confront “the central puzzle of legal philosophy: the merger of fact and value in the law,” to the concluding section of the final chapter, where he addresses the nature and task of jurisprudence or legal theory, it is clear that Eleftheriadis has not been writing his book to advance a theory of legal rights. His settled task has been to expound the basis for a sound theory of law and of legal rights. Establishing this would reduce argument from opposing theories on these subjects.
In what follows I shall first provide an overview of the work, indicating the topics covered and the basic structure of Eleftheriadis’s argument. I shall then comment on the construction of his proposed basis for legal theory.
In the preface to the book, Eleftheriadis helpfully clarifies how his study of legal rights is intended to provide a route to the proper understanding of jurisprudence. For the bigger project, he identifies the central puzzle as the merger of fact and value and immediately targets two errors of contemporary legal positivism as being flawed devices for avoiding the puzzle: taking jurisprudence to have a purely descriptive role and removing the nature of law from the nature of legal reasoning. The study of rights provides a suitable corrective to these errors: “We cannot endorse or apply rights without engaging in some kind of practical reflection” (viii). Being conscious that this standpoint can be undermined by a narrowing down of the understanding of legal rights and of the reasoning required by them, Eleftheriadis is quick to fortify his position by relying on Judith Jarvis Thomson to establish that the rights involved are essentially moral if they are rights at all, and thus he can stress the moral quality of “legal rights and doctrinal law” as “objects of practical rationality.” The fortification is then immediately strengthened by locating it within a political morality, to the point that “the theory of law as well as the theory of legal rights” can be announced as being “political philosophy” (ix).
It is less clear from the preface as to how the move to political philosophy will work exactly, although a number of clues are provided as to the route to be taken. Further indications are then provided of consequential studies on Hohfeldian correlativity, the nature of property, freedom in private law, and the clash between will and interest theories of rights. The final point made in the preface is an acknowledgment by the author of the importance of law’s comprehensive reach into our lives, as a ground for distinguishing the task of legal theory from that of moral or political theory. A point we shall return to below.
The burden of the first three chapters is to take legal rights into the political realm and, in particular, to make them the subject of public justification. The argument is multitextured. Chapter 1 alone involves the history of rights, the failings of analytical jurisprudence, the will-interest clash, and questioning the place of Hohfeldian analysis. Two particular steps in Eleftheriadis’s broader project are taken here. First, he introduces the recognition of two roles for rights (5), in being both an enforceable remedy and the ground for that remedy. Second, he rests the contrast between analytical (descriptive) and evaluative (normative) jurisprudence on “a simple and fundamental distinction between theoretical and practical reason” (16). This latter point draws on Gilbert Harman’s work and makes great use of his notion of “wishful thinking” (16) to denote a subjective arbitrary choice which is acceptable in practical reason but irrational in analytical, descriptive, theoretical work. In the following pages of chapters 1 and 2, this becomes (on more than a dozen occasions) something of a litmus test for flawed analytical work and, at the same time, the presence of practical reason.
Toward the end of chapter 1 Eleftheriadis poses the “three options” for legal theory (21). This fundamentally sets the agenda for the rest of the book. Option 1: we acknowledge that practical matters infect legal theory and prevent effective work that seeks to be purely theoretical. Option 2: we turn legal theory over to the practical realms of moral and political philosophy. Option 3: we rescue the theoretical endeavor by constructively dealing with the practical elements we encounter. The task of chapter 2 is then to convince the reader that constructivism cannot rescue a purely theoretical endeavor because it is implicated in practical reason, in various ways by the various targets (Hart, Coleman, Finnis, and Raz) typically flushed out as instances of wishful thinking.
Chapter 2 concludes with option 2, identified with Dworkin (and, initially, also Simmonds), as being the only way remaining to undertake “general jurisprudence as a philosophical subject” (43). The feasibility of this option is examined in greater detail in chapter 3, posing as the key problem the difficulty of distinguishing law from morality if both engage in practical reason. Without some distinction, law becomes simply delegated ordinary moral practical reasoning in those charged with making and applying the law (56, 64). The distinction is found by Eleftheriadis through drawing on Dworkin and a wider tradition of the public justification of legal institutions. This permits a distinctive type of practical reason for the law, where ordinary individual moral reasoning is curtailed by political constraints pertaining to the civil condition (59). Eleftheriadis stresses that the legitimacy of law at the level of an institutional order provides us with ideal principles of general jurisprudence but leaves subject to a deliberative process the determination of each individual case (63). This dual respect for the legitimacy of existing institutions, and for the ideal that lies behind them, allows Eleftheriadis to bring into legal practical reasoning the familiar Dworkinian desiderata of fit and integrity and treating fellow citizens as equals.
Having positioned legal theory and the theory of legal rights in the political realm, Eleftheriadis takes up a more detailed examination of legal rights in chapters 4–6 to demonstrate just how they manifest the particular form of practical reasoning associated with law. The particularly rich discussion is only skimmed over here. In chapter 4 Eleftheriadis maintains the need to recognize both the moral quality of legal rights and their role in practical reason, against views which would limit them to be normatively neutral presentations of legal positions. From these qualities it is a small step to also attribute to legal rights a role in securing a stable civic condition: legal rights draw from the shared moral commitments of society as well as securing the peculiarly legal moral objective of public order, making legal rights “comprehensible as public reasons” (84–85). Chapter 5 engages with deontic logic to make the point that this cannot capture the deliberative or reasoning aspect of legal rights, and so reinforces the earlier distinction between the two roles for rights in being both an enforceable remedy and the ground for that remedy. As a ground, rights provide material for practical reason which escapes the strictures of deontic logic (notably, contradictory rights can both be accommodated as grounds). As an enforceable remedy or the result of deliberative reason, rights can be presented in terms of deontic logic (104)—for which the Hohfeldian scheme is apposite. Chapter 6 examines Hohfeld’s scheme more carefully and with dramatic effect. Although the correlativity of Hohfeld’s analysis is regarded as supportive of the public-reason role of rights in that it provides intelligibility and identifiability of which citizens control what over other citizens (118) and although the Hohfeldian concepts can be regarded as “will-protecting concepts” and thus supportive of a will theory of rights (123), because Hohfeldian positions do not amount to practical reasons employed in deliberation, they are not rights at all; Hohfeld illuminates legal relations but not legal rights (123–24).
This particularly original suggestion from Eleftheriadis is not only dramatic but problematic, as he immediately recognizes. For if legal rights are associated exclusively with the ground of practical reasoning rather than the result of that reasoning, what is to differentiate legal rights from moral values (124)? The remainder of chapter 6 introduces a way of resolving this problem by adapting Thomson’s notion of cluster rights: general legal rights that act as reasons within practical reason lead to, or justify, particular conclusions in individual cases that are expressible in sets or clusters of different Hohfeldian relations.
The remaining three chapters serve to consolidate the principal features of the approach to legal rights that Eleftheriadis has been developing, in discussing property (chap. 7), freedom (chap. 8), and legal reasoning (chap. 9). In particular, what started as the two roles for rights and then hardened into a distinction between legal rights and legal relations is maintained throughout these chapters. In relation to property, there is further invocation of cluster rights and discussion of the peremptory force of rights which is suggestively linked to freedom, a theme then expanded in the following chapter. In discussing freedom, Eleftheriadis sees legal relations as protecting negative liberty within the civil condition and as revolving around an exercise of will. Nevertheless, he recognizes that within (Hohfeldian) legal relations there is simultaneously a protection of and a limitation of freedom among the parties. Ultimately this leads him to propose a special category of basic rights dealing with a higher manifestation of freedom. These are linked to the recognition of the equal worth of all citizens, to provide them with traction against displaced forms of freedom, and with a basis for the peremptory force that is identified with rights. The final chapter is more of a summary of what has gone before than a fresh discussion, underlining that rights are peremptory reasons in legal reasoning grounding clusters of legal relations between parties. The reasoning involved is practical both in a moral sense and more particularly in serving the civic condition. And a civic condition undergirded by rights amounts for Eleftheriadis to a liberal and democratic order promoting equal citizenship (179).
So the law and legal rights involve the moral and the political in this intimate but distinctive manner, coalescing in the fact of legal practice and the further reach of that practice for legitimacy in its public reasoning. If this sheds light on the “central puzzle” of the merger of fact and value in the law, for Eleftheriadis it also points to the role of legal theory as “an exploration of values” and to the appropriate priority of legal theory in seeking to understand what law is “by asking first what it ought to be” (179).
I shall briefly question here several stages critical to reaching this proposed basis for legal theory. First, the use of “wishful thinking” to designate a strong dichotomy, not simply between practical and theoretical reasoning but generally between the normative and the descriptive, effectively dismisses consideration of more complex and varied relationships between them. Beyond the obvious point that the normative is susceptible to description, there is the more subtle point that for a theory of normative material to be itself normatively engaged we must be dealing also with the argumentative: that is, it is not clear from the state of existing normative material what (describable) conclusions should be reached in particular cases.
Second, taking this dichotomy into the three options for legal theory restricts valid normative theory to exclusively engaged normative theory in a Dworkinian sense. It rules out as untheoretical an approach that allows the normative to disrupt the descriptive (Liam Murphy; 19–20) or an approach that seeks to complement the normative with the descriptive (John Finnis; 31–33). Yet in talking of normative theory, or as Eleftheriadis prefers “practical … philosophy” (21), there is already a severe strain on the strong dichotomy between practical and theoretical he is relying upon.
Third, this strain manifests itself theoretically in a methodological way but is dealt with by Eleftheriadis in a more empirical way, through keeping law’s distinct role in resolving moral contestability, while at the same time retaining a deliberative moral character to law. His strategy here operates on two levels. Law as the instrument of public order necessarily cuts decisively through moral contestability, but law as a publicly accountable mechanism is legitimated by socially acceptable values. On another level, legal rights similarly provide a decisive outcome which fixes the positions of the parties in a particular case, while also comprising a moral ground for the practical reasoning on which such results depend. However, on both levels the tension is held by a suspension of moral contestability: for law, the public values become “independent moral reasons,” “acceptable by all,” and “applicable to all” (55, 57, 58); for rights, the moral grounds become “shared moral commitments” (84). Without this suspension, the legal theoretical enterprise becomes overly moral: contestable throughout.
Fourth, Eleftheriadis’s analysis of legal rights perpetuates but cloaks this tension in severing the moral character and identity of rights, as grounds, from their instantiation in resulting legal relations. The separation produces insurmountable problems. If rights have a peremptory force, this must be found in the detailed content of their outcome, as Eleftheriadis acknowledges (125). Only to the extent that the moral value of freedom of expression gets instantiation with a legally enforceable remedy can it be regarded as a peremptory legal right. Another problem. The correlativity of legal relations links together positions held by individual parties (typically referred to as legal rights and duties; 63) which are jointly justified to the point of mutual tautology (175). How then can the correlativity vanish from the ground of such relations, now referred to as rights? One would have to accept some extrasocial, individualistic moral base for setting up these relations. Eleftheriadis nowhere suggests this. He frequently and emphatically asserts the contrary, not least in his foundational value of equal citizenship. (This, incidentally, casts doubts on both will and interest theories of legal rights.)
Fifth, “basic legal rights” are used to preserve the suspension of moral contestability, but if only these are peremptory (166), how do ordinary legal rights retain their status as rights?
Sixth, the process of legal reasoning with rights is identified with the move from abstract moral value (the “ground”) to specific legal relations. However, law contains not just abstract rights which ground concrete legal rights (or relations) by way of practical reason. It also contains general concrete rights which ground particular concrete legal rights (or relations) by way of deductive reason. (Legal reasoning of this sort is commonplace to the point of being banal, exercised by every taxpayer who claims a personal allowance.) Equally, both outcomes may provide guidance, peremptory force, and remedy (79) to those subject to them. Only the latter ground can in itself claim these attributes. Yet Eleftheriadis restricts the appellation of rights to cases of the former ground which alone fail to exhibit fully the characteristics he associates with rights.
Seventh, the insufficiency of abstract values to satisfy the attributes of rights is overlooked due to Eleftheriadis’s suspension of moral contestability (and hence an assumed inference of peremptory force), in his extreme paradigmatic case of Nazi law taken from Thomson (viii, 84, 173) and in his general assumptions about the scope of abstract values of equal respect for persons which ground (constitute) basic legal rights as being “endorsed by all” (163, 165–66). But the very contestability of such abstract values is precisely what poses the legal conundrum: factually determining a judgment between the parties which is to convey normative force, without enjoying an uncontested moral basis for that judgment.
Putting aside the extreme Nazi case, the value of equal respect for persons is not endorsed even in the abstract by all societies recognizing legal rights in what Eleftheriadis takes to be the modern sense (4–5). And even in states possessing “a liberal and democratic legal order” (179), the working out of legal rights has to contend with differing moral views of how to provide equal respect between employer and employee, unemployed welfare recipient and employed taxpayer, landlord and tenant, manufacturer and consumer, husband and wife, and so on. The fact of legal judgment still occurs without prior resolution of that moral contestability and without a subsequent resolution: the losing party can intelligibly proclaim profound moral disagreement with the judgment.
If these brief comments establish the contestable (and argumentative) moral environment in which legal rights operate, then the basis for a theory of legal rights, and a theory of law, cannot primarily be the exploration of values. Nor can the principal step in establishing an understanding of law be to ask what it ought to be. In such an environment both quests will be futile. Law’s distinctive reach into our lives irrespective of that continuing moral contestability does pose a peculiar problem for legal theory. It might also suggest a very different relationship with moral and political theory than that adopted in Eleftheriadis’s book. His book deserves to be seriously read and argued with.