A Conversa Conversation tion with with Profes sor so r Gerald J. Pos Postema tema by Lesley Dingle1 and Daniel Daniel Bates Ba tes 2 Date: 10th January 2014 This is the seventh sevent h interview interview for the Eminent Em inent Scholar Scholarss Archi A rchive ve with w ith an incumbent of the Arthur Goodhart Visiting Professor of Legal Science. Science. Professor Gerald Postema is the Cary C. Boshamer Professor of Philosophy, and also Professor of Law, at the University of North Carolina. This interview was recorded, and the audio version is available on this website. Questions in the interviews interv iews are sequentially numbered for use in a database of citations to personalities personalities mentioned across the Eminent Scholars Archive.
Interviewer: Lesley Dingle, her questions are in bold type . Pr ofessor ofessor Postema’s Pos tema’s answers a nswers are a re in normal normal type. Comments Comments added adde d by LD, LD, [in italics]. Footnotes added by LD. 1. Profe Profess ss or Postem Poste ma, this is the the s ixth year that that we we have inte interview rviewee d the Goodhar Goodhartt Profe Profess sor so r for the the archive archive and a nd you have be be e n chair for the the academ acade mic ye y e ar 2013/14. So I hope that in in this inte intervie rview w we we can pe pe rhaps rhaps talk about about your yo ur academic aca demic caree ca reer, r, your profe profess s ional caree ca reerr and there will be time time as we we ll for fo r you to give us some of your obse rvations about the Goodhart Goodhart profe profess s orship durin during g your tenu te nure. re. So, could we start sta rt with your yo ur e arly life? You were born in Chicago in 1948 194 8 . Righ Right. t. I was born on the south side side of o f Chicago Chicago into into a close kni k nitt communit community y of Dutch immigra immigrants nts.. It was a small, small, close kni k nitt comm c ommunit unity y in a large city, so we found found ourselves o urselves very much integrated and look lookin ing g in towards towar ds each ea ch other. I went to a high high school sc hool that was close closely ly assoc ass ociated iated with with the church that was in the centre of this this comm co mmunit unity, y, a kind kind of Dutch Reformed Church, and a nd then went on to college, college, again at a church-relate church- related d school, schoo l, Calv Ca lvin in College3. Calvin4 being the inspirer inspirer of that denomin denominat atio ion n of the Protestant Protes tant traditi tra dition. on. 2. You You began be gan at in 1967 196 7 at the Calvin Colle ge in Grand Grand Rapid Ra pidss . I wonder what s ub ubjects jects you studied at Calvin? My major was wa s philoso philosop p hy. I started sta rted out o ut thinking thinking I might ight actually ac tually go into into the t he minist inistrr y but but phil philosophy captured captured my heart and min mind, and and so by the the end end of two two or three three years, I was was thoroughly committed committed to doing philosoph philosophy. y. Calv Ca lvin in was was a small small school, school, small small liber liberal al art college, college, but itit had had a stell ste llar ar Philoso Philosophy phy Department, Depa rtment, proba pro bably bly the best department dep artment in the whole whole school, schoo l, and a nd itit was nationally known. So whil while I was at a small small school, schoo l, I got got really r eally a first first grade philosophy education there. 3. You then went on to Cornell where you did an MA. And PhD, together, yes.
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Foreign & Int Interna ernation tional al Law Librarian, Librarian, Squire Squ ire Law Library Library,, Cambridge Un iversity ivers ity Legal IT Teaching and Develop Develop ment Offi Officer, cer, Faculty of Law, Cambridge Cambridge University 3 Grand Rapids, Michigan. http://www.calvin.edu/admin/president/ 4 John Calvin Calvin (1509(1509-64 64). ). French theo logian and Protestant Protes tant reform reformer. er. 2 Fresh Freshfi fields elds
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4. Did you like the rur rural al Ne w York se tting? tting? Yes, righ right, t, rural and hilly hilly and cold. co ld. There is an intere interestin sting g story stor y about abo ut this. this. I went to Cornell Co rnell thinking thinking I would would study Philosoph Philosophy y of Reli Religio gion n and perhaps per haps pursue a caree ca reerr in that. When I arrived on cam ca mpus in August August of 1970, 197 0, having having enrolled, enrolled, I discovered discovere d that the one and only only man that had had been bee n doing Philoso Philosophy phy of Religion Religion at Cornell left seven years yea rs before that, so there was wa s suddenly nothing nothing for me to do. So I look looked ed aroun aro und d a bit and during during the summ summer, er, th for some reason or other, I had read the the cl c lassic 20 Centu Ce ntury ry work in in Phi P hilosoph losophy y of Law by H. 5 6 L. A. Hart called “Concept of Law ” , that’s in 1970. 197 0. It was written in 1961, 196 1, so it was still still new and very much much discussed. discusse d. I thought, thought, well, well, that seems interes interestt ing and then I also discovered that one of the most beloved and esteemed directors of PhDs was David Lyons 7 . So I decided dec ided that what I would would do is I would would take tak e up Philosoph Philosophy y of Law and I would would study with with David Lyons. Lyons. David David Lyons Lyons was on leave. So I looked to the Law School Sc hool and I found found a 8 man there called Robert Summers who who was hi himself se lf a Goodhart Professor some years ago a go [LD: 1991-92], and Bob Bob Summ Summers welcomed me with with open ope n arms and helped helped me plot out a program programm me in study of law alon along gside my work in phi philosophy for my my PhD. PhD. 5. Very inte interes restin ting. g. You spent s pent a year ye ar in En England gland,, 1973 -1974, at Unive University rsity College , Oxford, Oxford, where you we re a Recognise Re cognise d Scholar. Scholar. What What s pecifically is that that category? cate gory? I think think it is for for grad graduate uate students, the equivale equivalent nt of a visitin visiting g post. pos t. It was not… not… it’s not a degree granting positi pos ition, on, so there was wa s no no D Phil, Phil, no M Phil, Phil, nothin nothin g like like that, but b ut I was 9 able to work closely with, with, at that point, Ronald Ro nald Dworkin Dwork in . Oxford Oxford in 1973/4 was a very lively lively place for philosoph philosophy y of law. Herbert Herb ert Hart had stepped step ped down. Ronald Dworkin Dwor kin took up his his chair. chair. Joseph Jos eph Raz10 was a very strong stro ng presence prese nce at Balliol. Balliol. John Finn Finnis is 11 also at Univ Univ was a very strong stro ng presence, pres ence, and a nd each ea ch of them were doing doing their most most influe influe ntia l work at that point. The The books bo oks were were published published some time time in various years after a fter that, but they were all in in gesta gestation tion during during that time. time. It was a very exciting exciting time time to be there and, whil whilee Cornell Co rnell was impor important tant for shaping my general philoso philosop p hical hica l education educa tion and perspe per spective, ctive, Oxf O xford ord was extremely impo importa rtant nt in focusing my attention att ention on law and on analytic legal philos philosop ophy, hy, which which then I pursu pursued. ed. 6. At this point point you y ou we we re also als o a tutor in jur jurisprude isprudence, nce, bu butt at Que Que e n’s Colle College ge.. At Queen’s, yes. 7. I wonder how this this came c ame about? a bout? Well, it was just just because be cause I was famili familiaa r with.. with.... had studied studied a good good bit of jurispr jurisprude udence nce by that that tim time and and Queen’s Queen’s was desper des perate ately ly in need of a tutor. I was availab available le and willing willing to
5 Herbert Herbert
Lion Lionel el Ado lphus Hart (19 (190707-92) 92),, Profess or of Jurisprud ence, ence , Oxford Oxford University (195 (1952-69) 2-69) 1961, 1961, Claren Clarendo don n Law Series, Oxford. Oxford. 7 http://www.lawschool.cornell.edu/faculty/bio.cfm?id=178 Profess or of Law and Sus an Linn Sage Profes Profes so r of Philoso Philoso phy , Cornell. Cornell. Began teach t eaching ing phil ph ilos os oph y at Cornell Cornell in 1964 1964,, Chairm Chairman of Cornell Cornell University Philoso Philoso phy Department 1978-1984 1978-1984,, beg an teach ing Law 1979. 1979. Retired Retired 1995. 8 http://www htt p://www.l .lawsch awsch ool. oo l.cornell.edu/facu cornell.edu/facu lty/bio.cfm?id=78 lty/bio.cfm?id=78 Robert Robe rt S. Summer, Summer, William William G. M cRoberts cRob erts Research Rese arch Profess or in Administ Administration ration of the Law, Law, Emeritus: Emeritus: contracts con tracts , commercial commercial law, law, jurisprud ence and legal theory. 9 Ronald Rona ld Myles Dworkin, Dworkin, QC, FBA FBA (1931(1931- 2013). 2013). Frank Henry Hen ry Sommer Sommer Profes s or of Law and Philos Philos ophy op hy,, New York University, Em Emeritus Profess or of Jurisprud ence, ence , University College, College, Oxford Oxford (1969-98 (1969-98), ), Quain Profes Profes so r of Jurisprudence, University College London. 10 (1939(1939- ) Profes s or, Philosop Philos ophy hy of Law, Law, Balliol Balliol College. 11 John Mitche ll Finnis, Finnis, (1940 (1940 - ), Profes Profes so r of Law Law & Legal Philos Philos oph y, Univers University ity College, College, Oxford Oxford (1989- ). 6
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step in. in. It’s also an intere interest sting ing conn co nnect ection ion because be cause at a t that tim time I was working working on Bentham 12 and subse subsequent quent to that that I worked work ed a lot on Bentham and Queen’s was Bentham’ Bentham’ s college, though the conn co nnect ection ion wasn’t clear to t o me at that time, time, but there was a kind kind of an intere interest sting ing coincidence. 8. Jus Jus t jum jumping from your yo ur pas pastt to late las t year ye ar - on Thu Thursday rsday 21st Novem Nove mbe r 2013, you gave a lecture lecture at Oxford, Oxford, “Law’s “Law’s Rule: Reflexivity, Re flexivity, Mutual Mutual Account Accountabil ability ity and the Rule of Law”, Law”, at a Juri Juriss prud prudee nce Discuss Dis cussion ion Gr Group oup in the the Oxford Ox ford Faculty of Law Law Se S e nior Common Common Room. Ro om. I wonder whether hethe r this provide provided d a happy happy mee me e ting of old acquaintance acquaintancess and friends? There were some students that I had actual act ually ly taught taught in North No rth Caro lina lina who had gone on to do work at Oxford whom I met and a few few of o f my colleagues, colleagues, but not very many many of them them actual act ually. ly. It was a happy time to return. It was exactly 40 years from from the time time I had spent spe nt in in Oxford and I couldn’t imagine imagine that 40 years had had actuall act ually y passe pa ssed. d. Univ Univ Coll C ollege ege wasn’t particu particullarly arl y famili amiliar ar to me. me. The The Law Faculty Faculty at Oxf Oxford was very very famili familiar ar to me me and and the lively lively discussion discussio n that we were able to have that day did remind remind me of the wonderful time time I had in Oxford. 9. Going back to your past pas t again, after afte r Oxford you y ou we we nt to Corne Corne ll and you did did your PhD in three years. What was the topic? Yes, well, well, what actual act ually ly I did did was I started sta rted Cornell Co rnell in 1970. 197 0. I took a year away a way in in 1973 197 3 and 1974 and then returned re turned to fin finish ish my PhD, so I alrea already dy begun work on the the PhD dissertatio dissert ation n when I went to Oxford and then then studied lots of thing thingss there and a nd some law, some legal legal phi p hilosoph losophy, y, some politica politicall philosoph philosophy y and then came back bac k and appli app lied ed myself myself to the writing writing of the dissertatio disser tation. n. The dissertatio dissert ation n was in the p hilosoph hilosophy y of crimina criminall law on theories of punishme punishme nt, but I was especially esp ecially intere interested sted in the relationship relationsh ip between bet ween theor theories ies of pun punishme shme nt and and theori theories of justi justice ce or fai fairn rness ess in crimin criminaa l procedure. procedure. I was was explori exploring ng the the 13 relationship relationsh ip between betwe en them. them. To do that I focused on two main main figu figures res:: one was Kant , he repres rep resented ented one very impor importan tantt strain stra in in the theory of punishme punishme nt, a kind kind of o f retribu retr ibutt ivist theory of punishme punishment, nt, and the other being Jeremy Jer emy Bentham Bentham who was perhaps perhaps best known known for his his work in in a kind kind of utilita utilitarr ian theory of o f punishme punishme nt. It was was because beca use of that that that I began studying studying Bentham’ Bentham’ s work more generally because bec ause Bentham, Bentham, unlike unlike Kant, Ka nt, Bentham spent s pent a lot of his his time time over the years writing on issues issues about abo ut judicia judicia l proce pro cedure dure and evidence evidence and just just about abo ut everything else in law. When I fini finiss hed up the dissertatio disser tation n on the theory of punishm punishmee nt I put that aside, and started starte d workin work ing g on Bentham for quite quite a bit after after that. That really really got me me launched launched into into the study of Bentham’ Bentham’ s theory in general. 10. Your firs firs t academic pos postt was was a part-tim part-timee lectu lec tures reship hip at Johns Johns Hopkins Hopkins . This se e ms to have overlapped with your PhD. That was was a full full time time position p osition for five five years. That That was my first first officia officiall post. pos t. I was assistant ass istant professo pr ofessorr there for for five five years. year s. During During that time, time, I started sta rted work wo rk on Bentham’s Bentham’s legal legal theory more generally and it’s curious that… that … I had look looked ed at Bentham’s Bentham’s published published work which which was at that time, time, mid mid to late seventi se venties, es, very littl littlee and very obscurely obs curely published. published. There th was a 19 century editi ed ition on of his his works works that was badly edited and badly produced pro duced but availab available le and I was workin work ing g with with that. On O n the basis of that that I hit hit upon a kind kind of o f conundrum conundrum in trying trying to figu figure re out what Bentham’s Bentham’s theory is all about. He seemed see med to be a utilitar utilitar ian ia n and yet
12 13
Jeremy Jeremy Bentham (1748-1 (1748-1832), 832), legal and moral moral ph ilos ilos oph er. Imm Immanu el Kant, (17 (172424-1804). 1804). Profess or of phil ph ilos os oph y at Königsberg, Königs berg, Pruss Pruss ia. Philosop Philosop her and anth ropolog ist
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his views about law and espec esp ecial ially ly the necessity neces sity for codificat codification ion of law didn’t fit fit with his his backgrou backgroun nd, in my view, view, his backgrou backgroun nd moral and and politi political cal views. And And I wan wanted to reconcile reconcile them. them. I wrote a short paper pape r on that, on Bentham’s Bentham’s theory of adjudication, adjudication, and I thought, thought, well, well, someone told me me that there are ar e a few few manuscr manuscripts ipts in London that perhaps pe rhaps I should should look at. So I got a fellowsh fellowship ip towards towar ds the t he end end of the seventies to spend spe nd six or eigh eightt months or so in in London London at a t the Univers Universit ity y Coll Co llege ege London and there there I discovered discovere d there wa s not just a few manuscrip manuscripts, ts, but an enormous volum volumee of manuscripts. anuscr ipts. That launched launched me into into a long long study of o f some of the early ea rly manuscr manuscripts ipts in particul par ticular ar and some of the later thing thingss in a more selective s elective fashion fashion and that resulted ultimate ultimatell y in a book boo k in 1986, 198 6, my my first first book, boo k, 14 “Bentha “Bentha m and the Common Common Law Tradition” . So it was this little little thought that there mig might ht be something that would would help me me resolv reso lvee this conundrum, this this puz p uzzl zle, e, blossomed blosso med into into a very large proje p roject ct on which which I’m in in a certain cer tain sense still still workin work ing. g. 11. I s e e . Tr Tracing acing the trajectory trajectory of your care care e r. In 1980 you joined the Unive University rsity of North Carolin Carolina a (one of the the oldest oldes t pu publ blic ic un unive iversities rsities , in exis e xistence tence since 1795), 1795 ), and and you are s till there, Profe Profess ss or Poste ma. You became be came the Bosham Bos hamee r Distin Dis tinguished guished Profe Profess s or of Phi Philos losoph ophy y in 1997 and and rece ntly, ntly, s imul imultaneously, taneously, Profe Profess ss or of Law in 2002. I wond wondee r how these two roles combine? Well, I regard mysel myselff and have have been be en trained as a philosoph philosopher, er, not as a lawyer, lawyer, so I never did acqui acq uire re the American American law degree, degree , call ca lled ed a Juris Doctor, Docto r, JD. I did the equival equivalee nt of a first first year programme programme at Cornel Cor nelll and I studied more law while while I was at Oxford Oxford,, but my decisi dec ision on early ear ly on was that that I’m a philosop philosopher, her, not a lawyer. lawyer. I have no no intere interest st in practice pra ctice and at that tim time one o ne could study seriously law from a philosoph philosophica icall perspe per spective, ctive, philoso philosophica phicall techn tec hniqu iques, es, without without actually a ctually having having practiced pra cticed.. That’s no no longer longer true for my students. They They need to practice, they need to have have a law degree, d egree, but I didn’t. didn’t. So, when when I got to North Caroli Ca rolina, na, I was hired hired in the the Philosoph Philosophy y Department Depa rtment and that that has been since since 1980 1 980 my my home. As time time went we nt on, I got more more and more more involved involved in the Law School Sc hool at the the Univ Univers ers ity it y of North No rth Caroli Ca rolina na and in in 2002 20 02 they appoin appo inted ted me as Professor Pro fessor of Law there, thoug t hough h I still do just one o ne quarter quar ter of of my teaching tea ching tim t imee for them and most of my time time is in the Philos Philosop ophy hy Depar Dep artment. tment. So I’m still still primaril primarily y a philoso philosopher pher though though I focus my philosoph philosophica icall attenti atte ntio o n on law, not not exclusive exclusivell y on law, but mainly on law. 12. I notice notice that there is also a Boshamer Boshamer15 Chair in Law and I wonder whether there is any re re qu quir iree me nt in the be be qu quee s t for yourself yourse lf and Profes Professs or Tom Tom Hazen 16 to collaborate in your fields of study. No. That’s That’s interesting, teresting, but but I thi think it’s t’s sheer coin co incidence cidence that the two of us happ happen en to have this this endowed endowe d chair, both bot h of us bein be ing, g, in some respec res pects, ts, in law. law. That’s just simply coincidence. 13. Durin During g your time time at a t the the Unive University rsity of o f North Carolina, Carolina, you visited visite d Be Berkele rkeley y in 1979, M ichigan ichigan 1982 and Yale in 1993. Were these thes e s abbaticals abbaticals? ? No, they they were visi visiting ting posts. Berkel Berkeley ey had at that that poin point, in 1979, a PhD gran granti ting ng program programm me in the law school school that that was, I thi think, unique que for Ameri American can law school schoolss at that that tim time. It’s now a bit more more common common but itit was a PhD granting progra programm mmee which which was hig highly hly 14 Clarendo Clarendo n
Press , 1986 1986.. C. Bos Bos hamer Professo Profes so rships rsh ips at University of North Carolina Carolina were establishe es tablished d in 196 1969 9 by Cary Carlisle Carlisle Bosham Bosha mer, a member member of th e Clas Classs of 1917. 1917. Bosham Bosha mer was the owner and o perator perato r of a nu mber o f textil textilee mills. ills. 16 Thomas Lee Hazen, Cary C. Boshamer Distinguished Professor of Law, University of North Carolina (1980-). 15 Cary Cary
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interd interdisc iscip iplina linarr y, bringing bringing together peop p eople le in crimino criminology logy and sociol soc iology ogy and statisti sta tisticc s and histor history y and a nd phil philoso osophy. phy. I was their their resident res ident phi p hilosophe losopherr for the term. And the the same, in Michigan Michigan I was visi visitt ing and in in Yale Yale I was visi visitt ing again in in the Philoso Philosophy phy Department, Depa rtment, in both cases. cases. 14. Curr Curree ntly, ntly, you are are the Goodh Goodhart art Profe Profess s or and and I want want to as k what cours cours e s you are are teaching while you are here? Righ Right. t. I’m involved involved in two Legal Phil Philoso osophica phica l courses. course s. One in conjunction conjunctio n with 17 18 Nig Nigel Sim Simmonds onds and Trevor Allan Allan in Jurisprudence Jurisprudenc e and the other in conjunctio conjunctio n with with 19 Matthew Kramer , a course call c alled ed Topics in in Legal and Poli Po litica ticall Philosoph Philosophy. y. I lectured in both of those those pretty pretty much much full tim time in the the Michaelm Michaelmas as term. term. 15. Although Although you are are familiar familiar with the Oxbridge Oxbridge teaching te aching sys s yste tem m, how do you find find the syste sy ste m of sup s upee rvisions in contrast contrast to what what you are accustom accus tomee d to? Well, the intere interestin sting g thing thing here is that I was teachi teac hing ng LLM students and unl unlike ike under undergraduat graduatee instruct instruction ion in law, the instruct instructio ion n of LLM students is not not by way of supervision supervisio n but by way of lecture. So there was wa s not not a major ajo r transition from the kind kind of teachi tea ching ng that I do back bac k home home in North No rth Caroli Ca rolina na and the the kind of instruct instruction ion that was goin going g on here. So it was primaril primarily y lecture. I was surprised. surprised. I expected it to be more seminarseminar- like but the courses were heavi heavily enroll enrolled. We had about 25, I think, think, in the Juri Jurisprude sprudence nce course and well well over 30, maybe maybe 35 or more, in the topics course, so I was was force forced d to do more more directive directive lecturing than I normally would would have… than I planned planned to do, actual act ually, ly, but that was okay. oka y. My style, style, even when when I’m lec lecturing, turing, is not sort sor t of monologica monological; l; it’s rather ra ther more more eng e ngaged aged and I think think it may may have been bee n atypical for teachi teac hing ng here at Cam Ca mbridge, at least lect lecturing. uring. The The students seem s eem to tell me me that anyway. anyway. I regard phi p hilosoph losophy y in general, as my colleague once said, I regard regard phil philosophy osoph y as a contact contact sport and so I have have contact with my students, and that’s that’s where the the interes interesting ting intellec intellec t ual engageme engageme nt comes. I need to feel their their response resp onse and their intera interactio ction n if I’m going going to be able to address addre ss them and a nd educate educa te them and a nd make them fee feell the impor importance tance of the kind kind of ideas and argum arguments that I’m look lookin ing g at. a t. So [ it was a] much much more engaged activ ac tivity, ity, and in that respect respe ct it was great fun. fun. The students very much much resp r esponded onded to that. Each tim time I had had grea greatt fun fun.. Differe Different nt kinds kinds of people peo ple would would participate p articipate,, so it was not as unli unlike ke my ordin ord inary ary experience exper ience back bac k home, home, although although I think think in some respec res pects ts it was more more engaged. 16. Th Thank ank you. Profe Profess s or Poste ma, how how do do you view vie w the college -based -base d s ystem ys tem here, in in contras contrastt with with those faculties who are strongly ce ntralise ntralise d? Well, I was familiar familiar with with it of course because bec ause of o f my experience in Oxford and itit is very differe different nt indee indeed. d. What is, is, I suppose, suppo se, the the most most palpable palpa ble differe difference nce is that within within the college college one has intell intellect ectual ual contact with with colleagues colleagues across acro ss disciplines, disciplines, widely widely across acro ss disciplines. When I’m back bac k in my own institut institution, ion, I rarely rare ly see people peo ple in the natural sciences. I sometimes see people peo ple in in the social sciences, sometimes sometimes people peo ple in in other hum humanit ani t ies departments, dep artments, but my my colleague colleaguess with whom whom I intera interact ct on a daily basis ba sis are strictly my phi philosophy coll colleagu eague s or law law coll colleagu eague s. Of course course in in the the colleg collegee system system it’s very different that way. The The same thing thing with the students; they’re much more more diverse in their interes interests ts and so I fin find d the smallness smallness of itit and the the autonomy autonomy of these variou var iouss kind kind of thing thingss brings brings differe different nt people people togeth together er in a way that that I fin find reall really energ energiising. 17 Dr
N Simmonds, Reader in Jurisprudence, Corpus Christi College. R S Allan, Profes Professo so r of Jurisp Jurisp rudence ruden ce & Public Law, Pembroke Pembroke College. College. 19 M Kramer, Kramer, Profess or of Legal and Politi Political cal Philos Philos oph y, Chu Churchil rchilll College. College. 18 T
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17. And And your rese res e arch focus while while you’re here? here ? Righ Right, t, it’s hard hard to count them; two, maybe maybe three projec pro jects. ts. The one projec pro jectt is is to continue continue work that I’ve been doing, doing, articula articula t ing a view view about abo ut the nature and underlying underlying foundatio foundations ns of the idea of rule rule of law. law. I’ve now written two or three paper pa perss and I will will soon soo n be gi giving the the Boutw Boutwood ood Lectu Lecture at Corpus Chri Christi Coll College ege in late February February and and the topic topic wil will be on the the Rul Rule of Law Law and and what I take to be… I call call it the the ethos or the the cultu culture re that that we need we need if rule rule of law is is to be vibrant vibrant and robust rob ust in in a politica politicall communit community. y. I argue, therefore, therefore , that an essential ess ential feature of the rule rule of law law is a kind kind of mutua utua l accountabilit acc ountability y across acr oss all the the parties and a nd all the institutio institutions ns in a politica politicall communit community, y, and I’ll I’ ll be explaining explainin g and developing that idea idea even more more in the Boutwood Boutwood Lecture. So, on the one hand hand I’m workin work ing g on that idea. The main publicat publication ion projec pro jectt is very differe different nt though though it has… has… it’s it’s indicat indicative ive of the kind kind of way in which which I work philosoph philosophica ica l ly. I’ve got a contract with Oxford University Press to produce a collection collection of works by the the 17 t h centu ce ntury ry jurist, Sir Matthew Hale20 . There is an unpublished unpublished manuscript anuscr ipt in the British British Libra Library ry of some hundred hundred or more pages, p ages, a treatise trea tise on natural law and a nd another only obscurely obs curely publ p ublished ished essay ess ay in critique critique of the important important 21 English philosopher, Thomas Hobbes . I’m transcribing and editing editing those and a nd then adding ad ding to that a selection select ion of essays ess ays and other portions po rtions of works work s of Sir Matthew Matt hew Hale. So it’s som so mething like the “Juri “Jurisprude sprudence nce of Sir Matthew Matthew Hale”. Hale”. That’s That’s an editorial editorial project, projec t, not a phil philosophica osoph icall one, but itit indicate indicatess one way way in in which which I approa app roach ch my my philosoph philosophica ica l work which which has always been throu throug gh the the history story of phi philosophy, throu throug gh the the history story of legal legal theory theory and and in thi this case through the histo history ry of law itse itself lf.. I am a philosophe philosopher. r. I addres add resss issues of contem co ntempor porary ary legal legal and politica politicall philosoph philosophy y and ethics, ethics, but always through the lens lens and against against the backdr bac kdrop op of my work in the histo history ry of phi philosophy and and history history of law. So, So , “Bentha “Bentha m and the Common Common Law Traditi Trad ition” on” is a major ajo r piece piece of work work in whi which I did did just that. that. Throu Throug gh worki working on “Ben “Benth tham am and and the Comm Common Law 22 Traditi Trad itio o n” and David Hume Hume , I was able to address addre ss and brin br ing g to, to , at that time, time, the middle middle eighties, eighties, a persp pe rspec ectiv tivee on core cor e issues that were being being debate deb ated d at the time time in legal legal philosoph philosophy. y. That’s That’s always been be en the way I approa app roach ch thin things. gs. I will will then, after a fter I pretty pre tty much much finish finish up the editing editing projec pro jectt on Sir Matthew Hale’s Ha le’s work, I’ll put together a book boo k on Hale and and Hobbes and perhaps perhaps Benth Bentham am on some some key themes: themes: the the nature ature of law, law, the the nature ature of leg legal al reasoni reasoning, ng, authority and sovereig sovere ignt nty. y. I haven’t decided d ecided whether to put Bentham into the picture yet but it will will certainly cer tainly be on Hobbes Hobb es and Hale. So there’s there’ s the philos philosophic ophicaa l side of the the editorial editorial work. 18. Very inte interes restin ting. g. Th This is brings brings us now to your scholar s cholarly ly outp o utput. ut. Obviously I have to be re re s trictive trictive here (a) be be cause of your very ve ry large output output and (b) (b) of o f cours cours e my my very ve ry restr res tricted icted knowle knowledge. dge. So I have focuse focuse d on your your first publica publication, tion, which I’ll I ’ll come to s hortly, and your yo ur two two books on which which you we we re single auth a uthor. or. I hope that we can go through through these thes e now. now. So your first paper was pu publishe blished d a year ye ar afte r you left Calvin Calvin College. Righ Right. t. That was written while while I was an unde undergradua rgraduate te and then itit took a while while to publ publiish. sh. 19. Th Thee school s chool was dedicate de dicated d to Calvin and I wondered ondere d if this was was what what inspired the title and the subject matter: “Calvin’s Alleged Rejection of Natural Theology”. It was 20 (1609-1676). 21 22
(1588(1588-1679), 1679), Engli ng lish sh philosop p hilosop her. David Hum Hu me, (1711-17 (1711-1776) 76),, Scottish philos philos opher.
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of Theology Theol ogy 23 when you we publishe pu blished d in the Scotti sh Journal of we re 23 ye ars old. Well, yes, Calvin, Calvin, in his his most most famous famous work, work , “Instit “Instit utes ute s of the the Christian Religion Religion”, ”, works within within a largely scholastic, philoso philosophic phicaa l framewor framework. k. So he develops, develops , what in in phi philosophy we call call an epistem epistemol ology, ogy, a theory theory of knowl knowledge, edge, and and then works works with within in that that to develop his his core cor e theologic theologic a l ideas: the nature of scripture, scr ipture, the nature nature of God, the status stat us of hum human beings beings relative to God, and the like. like. He opens up, up, some people peo ple say he opens ope ns up the whole whole enterpr e nterprise ise by saying saying we should should not appro ap proach ach these questions from a philoso philosophic phicaa l or a natural theology perspe per spective, ctive, but from a perspe per spective ctive that’s distin distincc t ivel ive l y scriptural s criptural and interna internall to the religious religious traditi trad ition, on, and what what I did is I took that on. I said, “No “N o , I think think there’s reall rea lly y a phi philosophical osophical project here.” He reall really has and and presupposes presupposes an epistem epistemologi ological cal framewor ramework k and a certain ce rtain metaphysica l framewor framework k and we need to see that if we’re going going to under understand stand well his his theology. theology. It’s intere interesting sting because bec ause what that paper pape r indi indicates cates is that I was a phi philosopher, osopher, but but I was also also an adheren adherentt to the the theolog theology y, to a certain certain exten extentt any anyway, way, but but I wanted to make make sure that I could combi c ombine ne those and a nd this this was an expression expre ssion of my attempt atte mpt to find find in the text itse itself lf some s ome support for that that approa app roach, ch, that philosoph philosophica ica l approa app roach ch to the issues issues of theology. 20. Have these thes e influ influee nces guide guide d your futu future re caree r in the the law? law? Largely no, although although the one thing thing that’s true about the reformed reformed Protest Pro testant ant traditi tra dition on is that it’s very serious serious about abo ut the role of the Old O ld Testam Testa ment, to the Hebrew Hebr ew Bible Bible in its under understa standi nding ng of major theo theologi logica call issues. One of the core cor e concepts co ncepts in that traditio traditio n is the concept conce pt of o f covenant and itit turns out that that I am now at work, when I’m not not working wo rking on o n rule rule of law and Matthew Hale or Jerem Jere my Bentham, I’m working on a projec pro jectt which which I may be b e able to brin bring to compl completi etio o n thi this year as well well, on a paper and and maybe maybe someth something ing larger arger on the the them themee of the Covenant as a politica politicall idea, not not a theological theologica l one. So, So , I find find myself myself comin com ing g back bac k or feeling feeling some affinity affinity to and some expressiv express ivee resource res ourcess in that tradition. tradition. And especially esp ecially this reformed theological theologica l tradition tr adition that has strong stro ng conn co nnect ections ions or possibl pos siblee roots roo ts with with Judaism and Jewish views views of thing thingss as well. well. So I’m findi finding ng those notion notionss to be richly richly suggest suggestive, ive, not for theological theologica l purpose p urposes, s, but for purposes purpo ses of under understa standin nding g the nature of politica politicall obligat obligation ion and that that sort so rt of thing thing.. 21. Coming Coming back to som so me thing thing that you conclude conclude d in this paper paper with with a qualified qualified “yes “ye s ” that that Calvin did did as s e rt the validity of natur natural al theology and that that one can conte conte mplate plate God through through the s criptur cripturee s . You also als o claim that that Calvin implied implied that one can find knowle knowledge dge about God eve n apart from from the scriptures scriptures (page 430). You imply in your conclusions, conclusions , (page 434), that one has to believe in God for a reason and that faith cannot be irration irrational. al. I wonde onde red, Profe Profess sor so r Poste ma, whether you’ve modified modified your view vie ws on this over more than 40 years? I’ve grown in many, many many ways wa ys and I don’t know whether I am, shal shalll we say, an orthodox orthod ox reformed Chri C hristia stian n believer, believer, but pretty pre tty much much so, and I think think that does… does … I had forgotten that part pa rt of what I had said som so me 40 4 0 years ago, more than 40 years ago, but I thin think k that is is indee indeed d the view view I still still hold. hold. I think think it really really does doe s reflect how even trying trying to appro ap proach ach these issues of o f faith faith and practice, pra ctice, my philoso philosophic phicaa l bent be nt was pretty clear even as an under undergraduat graduate, e, and I think think it’s probab pro bably ly stayed with me.
and 22. Th That at brings brings me to your firs firs t book published published in 1986 by by Clare Clare nd ndon: on: “ Bentham and the Common Common Law Tradit Tradition ion .” Obviously I haven’t been able to read the whole book and 23
Scottish Jl Theology, 24(4), 423-434.
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rece nt critiq critique ue by I’m very ve ry much guide guide d by a re re view vie w by Michael Michae l Lobban24 and also a recent 25 Ferraro in the Journal of Bentham Bent ham Studies Studi es . fe w points. points. On page page nine nine you say your main main theme of the the So, I’ve just picked up on a few book is Be Benth ntham’s am’s theory the ory of adj adjud udicatio ication n and after a thorough thorough analysis analys is of Benth Be ntham’ am’ss writings ritings,, you conclude conclude d (page 453), 453 ), that his ove rall theory theo ry of law, which which is suppos supposee d to unite un ite positivist ideas idea s in a code code and utilitar utilitarian ian prin principles ciples via me me thods thods of adjud adjudicatio ication, n, is self-defe self-defeating. ating. Your ove rall conclusion on page 459 is that that Be B e nth ntham’s am’s the the ory is valuable not in, in, and I quote quote,, “his succes succe s s ful tre tre atment of the the p prob roble lem m bu butt in his having brought brought it to our attention”. attention”. I wonder if this is perhaps not damning damning with faint fa int prais praisee . Philoso Philosopher pherss oftentimes oftentimes offer offer their most most sincere sincere este e steem em through their most most severe criticis criticism. m. This This was an attem atte mpt to take very, very, very seriousl se riously y the work of a legal legal theorist who had been bee n wellwell- known know n and, not not in in his his lifetime, lifetime, but to a certain ce rtain extent subseq s ubsequent uent to that, that, qui q uite te influ influee ntial. nt ial. But not not near nearly ly as influ influee ntial, nt ial, I thought, thought, as he coul co uld d have been bee n had he he actually publ publiished shed most of what what he’d written written.. So, a larg largee part of thi this valu alue of this this book, boo k, should should it have have any, is that itit brought brought to the the attention of legal legal phi p hilosophe losophers rs and politica politicall philosop philosophers hers and th histor historians, ians, I suppose, suppo se, in in the midmid- eighties eightie s through the end of the 20 centu ce ntury, ry, elements elements of Bentham’s Bentham’s thought thought that were just just not well well-known -known and put them together in a way… with an attempt atte mpt to make them as coherent coher ent a theory as a s possible. pos sible. So I work worked ed all the the way through it and I came to the end that that the strugg s truggles les he had are struggles with with deep dee p and abiding abiding issues and that his his struggles struggles are worth paying paying attenti atte ntion on to. The fact then that that his his prop p ropose osed d solutio solutio n didn’t qui q uite te achi ac hieve eve what he would would like like seems see ms to me less less a worry to us and certainly no reason rea son for putting aside thinkin thinking g about abo ut both the problem prob lemss he articula articula ted and the the way in which which he approac approached hed them. them. It seems to me that there’s stil s tilll much much to be gained gained from the study of that, though though in the end I thought thought it was unsucces unsuccessfu sful. l. That’s a typical way in in whi which ch we phi philosophers osophers approach th the matter. atter. One woul wouldn’t dn’t be a cardcard - carrying carrying-- phil phi losop her if you said, well, well, this this is what he did and it’s it’s just wonderful. Most Mos t of us want to be a bit more more critical of things. 23. Ye s. Ferraro Ferraro discuss e s your “dire “dire ct u utilitari tilitarian” an” theory. You believe belie ve Be Benth ntham am implied implied the judge judgess could lay aside as ide the code in order to adjud adjudicate icate utilitaria utilitaria n princip principle less , and Fe Fe rraro rraro s ays that that your inte interp rpretation retation needs nee ds modificatio odification n to where where jud udge gess have flexibility only in in proce proce du dural ral matters. atte rs. He says sa ys that Be Benth ntham am meant to give them the the powe powe r onl o nly y to re re fer the code code to le le gislation gisla tion for modification modification.. I wonde onde r, Profe Profess sor so r Poste ma, whether whether you still stand by your your radical radical revisioni revis ioniss t inte interp rpretation retation s ome 30 year yea rs later. late r. Well, Well, what what Ferraro F erraro did, to his his credit, is he identified identified texts that I had had not seen. see n. So, in order ord er to assess ass ess the strength of o f his his argu ar gumen ment, t, I need to look more more care c arefu fully lly at those those.. My plan is to… another projec pro ject, t, you asked as ked what what my proje pr ojects cts are; are ; my my plan p lan is is in the the next year or so to brin bring out out a second second editi edition on of “ Bentham which I attempt attempt Bentham and the Common Law Tradition Tradition ” in which to address addre ss just just that, those those criti criticc is ms. I don’t have have an immedi ed ia te answer on that. Ferraro Ferra ro has done a very good job jo b of looking looking at texts and it remains, remains, I think, think, for me to see whether whether the case is seriou ser iouss enough. enough. I’m willing willing to modify modify the conclusio conclusio n should should the texts warran t it. I’m mindfu indful, l, however, that sometimes sometimes we may disagre disagree, e, not about abo ut the readin read ing g of o f texts but about abo ut the under underlying lying philoso philosop p hical hica l assum ass umptio ptions ns that are bein be ing g made, made , and I’m not sure that he he 24 Michael Michael
Lobban , Profes Profes so r of Legal Legal Hist History ory Lon London don Scho ol of Economics Economics.. Lobban ob ban 1987, 1987, boo k review, Cambridge Law Law Journal p. 520-523. 25 Frances o Ferraro, Ferraro, Dipartimento Dipartimento di Scienze Scienze Giuridiche iuridiche “Cesare Beccaria”, Universita deg li Studi di Milano. Milano. Ferraro, Ferraro, 2010 2010.. Direct Direct and indirect ut ilitari ilitarianism anism in Bentham’s the ory of adjudication. adjud ication. Jl of Bent ham St udi es, 12, 1-24.
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and I woul would d agree on that, that, so what what I need to do is to be sure that… tha t… in particular particular I want to under understa stand nd better bett er what he he takes the the commitme commitments nts of what I call ca ll a “direct “direct utilitar utilitar ian” ian ” might might allow. allow. If it turns out that Bentham Bentham was indeed indeed insiste insistent nt that judges not appea ap peall to their their own o wn assess ass essmen ments ts of, as he call ca lled ed it, the the balance of utilitie utilities, s, all thin things gs considered, consider ed, in making impor important tant decisi dec isions ons in the course of adjudi adj udicat cation. ion. If that indeed indeed was wa s his his view then we need to reall rea lly y seriou ser iously sly go back bac k and think think of o f a whole whole lot of other more fundame fundamenta nta l commitme commitments nts that Bentham Bentham had made and a nd try to fig figure ure out how to resolve that. It’s possibl poss iblee that Bentham was inconsiste inconsiste nt and that he has has no no coherent theory. t heory. One of my friends friends is inclin inclined ed to thin think k that. One majo majorr criticis criticism m of this this book boo k is that it it make makess Bentham more cohere c oherent nt than he he in in fact was. 24. Fascinating. But I’m inclined inclined to say let’s let’s give give this this really r eally intrigu intriguing, ing, engaged and creative cre ative mind ind as as much benefi be nefitt of the doubt as possibl pos siblee and see what what we can do with with the material mater ialss he provi pro vides des us, and coming coming up with a perhaps per haps very nuanced, nuanced, but nevertheless neverthe less overall overa ll cohere c oherent nt view view of o f the relationship relationsh ip between betwe en practical reasonin rea soning g of the judges and a nd a structure of the laws and and the system of laws laws and the the like. like. Ferrar Fe rraro’s o’s work wor k here will will be very impor importan tantt in my addres add ressin sing g that t hat again, though I’m not wi willing yet to accept acce pt that that modifi modificat catio ion n is nece necessary. ssary. 25. So, after afte r all your study of Be ntham, ntham, what would would you say sa y are his main main contributions contributions for modern ode rn legis le gislators lators and adjud adjudicato icato rs? There There are perhaps two or three. One is is that that he took a standard model od el of o f law law and treated trea ted that as a kind kind of template template for unders understandin tanding g the operation ope ration of law, law, a standard sta ndard model bein being a so-called so-called comm command and model. odel. Laws Laws are comm commands ands of someon someonee who who has soverei sovereign power. power. And then then he underst understood ood soverei sovereign gnty ty in a certai certain typi typical cal way. way. He took that but… and that’s a notion that’s com co mmon to many, many, many theorists prior to Bentham and well after. You find find it in Hobbes Hobb es very very prominent prominentll y but in many, many, many other theorists theor ists before Hobbe Ho bbess and between between Hobbes and Benth Bentham am.. Benth Bentham am took th that comm command and model and and then worked worked it so carefully car efully and over time time trying trying to thin think k of o f various applications a pplications of itit and developments of it, so that by the the time time we get get to a mature theory of law, the command command model has pretty pre tty much much been bee n exploded and a nd devel de velope oped d into into something altogether differe different. nt. I think think that his his need to work both wi with that that model and and to transf transform orm it in order to meet meet the the needs of what what he took to be the the demands of rationality rationalit y on a legal legal system, that struggle struggle he had is is a struggle that’s well worth wo rth thinking thinking about abo ut in legal theoretica l terms generally. The The other o ther thing thing is that, while while he is is often thought thought to be the the kin k ind d of originato originatorr of, or one of the the most important originators of, contemporary legal positivism, unlike other positivists, he thinks that what’s essential to law is is reason rea son and rationality rationalit y and provi pro viding ding reasons rea sons for for people peo ple to act ac t and not not just j ust comm co mmands ands backe bac ked d by some kind kind of sanction, sanction, and he wraps wrap s that up in in a very complicat complicated ed discussion discussio n about abo ut the role of system and systematicit systematici t y in law. I think think that’s t hat’s well we ll worth paying paying attenti atte ntion on to in our thinkin thinking g about abo ut or theorising about, ab out, common common law or civil civil law systems.
The other thing thing in Bentham’s Bentham’s work that I think think is especially esp ecially impor importan tant, t, and I give give it some treatmen trea tmentt in the the book, book , but I’ve done it more more in subsequent w ork, ork , is that Bentham Bentham took t ook the publici publicitt y of law law to be one of its most most impor important tant attributes. Law has to be something that is always always access acc essibl iblee and those those who are to be governed by b y law must must be b e able always to under understa stand nd what the law law requi req uires res of them, them, but also be b e in a positi pos ition on to hold hold those who are administe administerr ing the law law acco ac coun untab table le to that that law. So what we have is, itit turns out, a fairly fairly radical radical view of what we would would now call the Rule Rule of Law requi req uires res.. Now, No w, this this notion of
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publ publiicity and and accountabil accountability ity at the the core of his his notion otion of a law law is what what we now now thi think of as an impor important tant part par t of the Rule Rule of Law, so there’s there’ s another aspect asp ect of this this which which I had hadn’t n’t see s een n fully fully in the book, bo ok, but I have have now expl e xplore ored d more and I think think is really a valu valuable able contributio n. I gave a lec lecture ture in China China in 2012 on just this this topic. It’s call ca lled ed “The “The Soul of Justice” Justice” because because Benth Bentham am,, at one tim time, says says that publi publicity is the the soul of justi justice, ce, and and so I presented presented the the thesis there of Bentham Bentham’s ’s sort sor t of radical rad ical publicity, publicity, which which of course cours e is is contrary to a good bit of what Chinese Chinese governme governme nt structure and ideology woul wo uld d find find comf c omforta ortable. ble. So it was an intere interest sting ing time time to present pre sent that kind kind of issue issue and thin things gs have gone gone even sadly sad ly worse in in the last last couple of years since then. 26. Profe Profess sor so r Poste ma, looking at your pu publ blications, ications, your titles titles , I notice noticed d that the the name name Benth Be ntham am occurs occurs 11 time time s in the title title of o f 52 articles articles e tc produ produce ced d since 1971 197 1 to 2006. 2006 . That’s Th at’s nearly one in five, and after afte r that that none none . Benth Be ntham’s am’s work was clearly cle arly a consuming consuming intere interess t unti untill 2006. 2006 . Has there bee n a conscious s hift hift in your re re se arch e mph phas asis is s ince ince then? Well, no, I’ve actually ac tually com co me back to Bentham again and so, as I say, in 2012 I wrote another paper pap er and I will will be doing so again. again. So it’s not so much a shift shift away as that I’ve been working working on Bentham and then then a numbe numberr of other other things things as well all along. There are ar e a numbe numberr of papers pap ers on David David Hume Hume for example example and his his moral phi p hilosop losophy, hy, which which I find find reall rea lly y impor important tant and intere interest sting. ing. A number number of papers pape rs on, on, as I say more more rece re centl ntly, y, on the Rule Rule of Law. A num number of papers pap ers especially esp ecially for a while while on the ide ideaa of custom and conventio conventio n, both bot h in internat internat ional io nal law and and in in domestic law context which which have nothing nothing reall rea lly y very much much to do with with Bentham at all all but actually ac tually much more issuing issuing from my my attempt atte mpt to underst understand and classical common common law views views of law, quite quite dif d iffere ferent nt from Bentham Bentham’’ s, and their relevance to 20 th century both politica politicall and legal legal theoretica theore ticall problems. pr oblems. So, in a way, thi t hiss book boo k [ Bentham kind of a Bentham and the Common Law Tradition] provided a kind template template for a load of research researc h I did subseq subsequen uentt to its publi publicati cat io n. There’s There’s more work on Bentham. Bentham. There’s a lot more more work wo rk on common common law, both its history history in the 17 t h century ce ntury in a classical context and a nd modern comm co mmon on law notions. notions. I have a work wor k on argument argument by analogy. analogy. I have a piece of o f law’s systematicit systemat icity. y. The only only piece I actual act ually ly sang at one point is a piece on on melody in law - I say there’s an analogy between bet ween melody melody and law, legal reasonin rea soning. g. On one side I’m thin thinkin king g about ab out the common common law issues issues and a nd the notions notions of custom and conventio conventio n and common common reasonin rea soning g that I needed neede d to further further develop in a contemporary contempor ary context, notions notions I based th the book on, on, issue ssue from that strand. strand. And And then then there there are a couple couple of chapters chapters on Hum Hume in the book bo ok and and I’ve worked work ed on Hume Hume more generally on its its own o wn and then then I’ve worked wor ked on Bentham subsequent subse quent to this this as well. well. So, there there are a re kind kind of three strands str ands of the work after after that and then then some s ome others that were reall re ally y not related to this this at all. all. 27. Th Thank ank you, yo u, which brings brings us to your lates t book where where you y ou are are a single author Twenti eth Century: the Common Common Law World World ”26 . This again: “ Legal Philosophy in the Twentieth book charts charts the course of two two wide ide ning ning s tre tre ams of thought thought that are are e pitom pitomise ise d in lectures given by Oliver Wendell Holmes Jr in 1897 and Hart in 1957 in Boston. You place place much em e mph phas asis is on the the deve lopme lopme nt of these thes e s tre tre ams ams on the the personalities of these thes e two two giants. g iants. Clearly, Profe Profess ss or Pos Poste tem ma, you ne ne ver ve r me t Holme Holme s, but I wonde onde red whether you eve e verr had the chance chance to me me e t Hart during during your yo ur time time at Oxford? Oxford? I did. Yes. I met him just briefly in 1973 197 3 or 1974, 197 4, I’m not not sure when itit was. [ Also],
26 Legal
Philo Ph ilosoph soph y in the Twenti eth Centu ry: The Common C ommon Law World ”. A Treati se of Lega Lega l Philo soph y and General Jurisprudence, Volume 11. Springer, 2011.
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when I went went back ba ck to Eng Englan land d to study to do work for for the Bentham book boo k and working on the the Bentham projec pro jectt at Univ Univers ersity ity Coll Co llege ege London, I did have have an opportuni opp ortunitt y to meet ee t with with him him several severa l times times in Oxford over o ver Bentham materials mater ials espec esp ecial ially. ly. So I did get to know him him.. He was a giant. giant. He also also was a wonderfull y warm and generous man, man, and really really one of the most t h important figures in English-speaking legal philosophy in the 20 century. 28. I wond wondee r, as we we ll, whe whe ther you had a chance chance to me e t his his wife wife at any any point? point? 27 Jennifer. Jennifer. [No. [N o. But] my my good friend, friend, Niki Lacey, Lace y, Nicola Lacey Lace y , who wrote a wonderful biography of Hart, actually was very very close to them them and she she and I conferred conferre d about abo ut some thin things. gs. There There was another occas oc casion ion on which which I actually actually spent spe nt time time with with Hart. There was a conference in Hart’s honour at the Hebrew Hebr ew Univers University ity in Israel in 1984 and I presented prese nted a paper pape r there there and he he commented commented on that paper. paper . It was critical critical of some some parts of Hart’s work, and he he was very generous gener ous at that poin po intt and Niki told me later that he spent a lot lot of o f tim time thinking thinking about abo ut the problem pro blemss that I had raised ra ised with with this this pape p aperr and that encouraged me because bec ause I didn’t think think it was… and that was very early ea rly in in my my caree ca reer. r. 29. In the the conclus conclus ion to this this book, page 577 5 77-78, -78, you say that that in the the Middle Middle Ages , qu quoting oting that it lay at the the ve ry heart of Kelly 1976, “jur “jurisp isprud rudee nce was the true true philosophy and that theoretical theoretica l stud s tudie ies, s,” ” and that that law, law, I quote quote again, ag ain, “pe “pe netrated the practical practical dime dime nsions of daily social s ocial life.” life. ” Later, you yo u s ay, page 583, that in modern modern Anglophone Anglophone juris urisprudence prudence you se nse that that natur natural al law the the ory has re re turned turned and the the re is room room for a genuinely genuinely philoso ph ilosoph phical ical jurisprudence urisprudence,, s e nsitive to to both both legal le gal practice practice and the the place of law in hum hu man s ocial life. I wonde onde r how you yo u s e e this this return return to forme forme r values v alues manifes manifestin ting g itse lf? So the the story of this this book, boo k, there are a re a num number of differe different nt plotlines, plotlines, but one of them is 28 that in the stream that issues from John Austin in the latte latterr part p art of the 19 th century ce ntury through to Hart and a nd a good bit of Anglo… Anglo… let’s call it Britis Britis h legal legal philoso philosophy phy became bec ame more more and more more restricted res tricted in the range of questions and issues issues it wished wished to deal dea l with. with. More M ore and more more willing willing to say, “well, “well, that’s not a problem for us”, us”, whereas wherea s Bentham, Bentham, for example, example, had this this just wide wide open ope n compendious kind of view view of what what someone concerned c oncerned philosoph philosophica icall ly about abo ut law would would be in interested terested in. So I thou thoug ght there there was an in increasingly creasingly narrow, arrow, narrower, arrower, narrowi arrowing kin kind of view. view. The The stream stre am that came out out of Holmes, Holmes, a more American one, was always much much more open, ope n, but far far less less disciplined d isciplined so you had a very high highly ly disciplined, discipli ned, rigoro rigorous, us, precise pre cise kind kind of of legal theory that got narrower and narrower narrower as opposed to a legal theory that was open o pen to just just about abo ut everything - latitud latitudii naria nar ian n - but not very very discipli disciplined. ned. There was a kind kind of struggle struggle between between those those two. two. What What I thi think’s happeni appening now is that that we’ve we’ve become become a bit bit more more aware aware of two thing things, s, I think. think. We’re We’ re much much more – I’m hop hopin ing g this is true – much more intere intereste sted d in looking looking at the role of contemporary contempor ary issues relati re lative ve to the the histor history y of legal legal theory as a s it’s been… well, well, as it’s been bee n written written and thought thought about abo ut since since the ancient ancient times. times. This This sort so rt of echoes my my prejudice pre judice here but I think think legal legal philosoph philosophy, y, like like any philosoph philosophy, y, is done best only only when it’s it’s done through through its history, and I think think we’re finall finally y getting getting back ba ck to that. So there’s much much more attenti atte ntion on to the histor history y of these these thi t hing ngss than before and I think think that can be energising. energisin g. Oddly Od dly enough, enough, I think think what it can do is provi pro vide de us with with a new critical critical perspecti perspective on the the issues ssues that that we oth otherwise erwise take to to be sort of obvi obvious ous and and allows allows us to stand stand back and and chall challenge some some of the the accepted views. views. Like Like learni earning a new lan lang guage gives you new perspecti perspective on you yourr own, own, lookin ooking at the the contem contemporary porary legal egal theoret theoretiical problem problemss from 27 Nicola
Lacey , Profess or of Law, Law, Gender and Social Policy, Policy, Lond on Scho School ol of Econ Economi omics cs . A Life of H.L.A. Hart: The Th e Nig htmare htma re and the th e Nob le Dream (OUP 2004). 28 John Aus tin (1790(1790-18 1859). 59). English jurist a nd legal philoso pher. phe r. Profess or of Jurisprud ence University University College College London (1826-33).
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something of its histor history y can reall rea lly y give give us an enliv enlivee ned critical critica l perspe per spective ctive on them. them. I think think we’re now openi op ening ng up a bit more more to that and so that’s very good. Also Also on the other side, side, there’s more openness op enness to thinking thinking about abo ut normative politica politicall issues in the context of analyt analyt ical ica l legal legal theory than there was wa s some time time ago. So those two elements elements go together. It’s not reall rea lly y natural law theor theory y in in the oldold- fashio fashio ned sense of it, excep exceptt that that natural law theor theory y was first first of all not a theory that law and mora morali litt y are somehow the same but rather ra ther a view view that law is is a kind kind of human human enterprise enter prise that we can ca n unders understand tand only by settin sett ing g that enterprise enterp rise in its larger human human and social soc ial context and under understa standin nding g all of that. I take that to be the the key in insigh sightt of our natu natural ral law theory theory and and hopin hoping that that we hav have actual actually ly moved, oved, begu begun to move, move, more in that direction direct ion.. 30. Profe Profess sor so r Poste ma, do you think think that there are are analogies or paralle paralle l philoso philosoph phies ies for civil law and Islamic legal systems? Sadly Sa dly,, I know litt little le about abo ut Islamic Islamic theories. This This book, boo k, “ Legal Philosophy Philosophy in t he Twentieth Century, the t he Common Law World ”, ”, is actually a part par t of a 1212- volum volumee treatise. trea tise. It’s volum volumee 11 of a 12 volu volum me treatise, trea tise, which which I and my my coll c ollea eagu gues es in Bologna Bologna have been bee n workin work ing g on, producin pro ducing g since since the t he mid-nin id- ninee t ies. The first first volum volumes es came out in – in – II don’t know – early early 2002/2 200 2/2003 003,, something like like that, of this this new millen millenni nium. um. The The aim of that was to build build bridges and to have a kind of cross-fertilisat cross- fertilisatio ion n of ideas. I’m inclined inclined to think think that t hat there there’s ’s a lot that thinking thinking about abo ut common common law traditi trad ition on can offer offer to the civi civilia lian n tradition. trad ition. I also thin think k that Bentham, Bentham, who was not a typical common common law theorist theo rist at all, all, has a great deal d eal to offer offer and would would be b e much much attract attr activ ivee to our civil civil law brothers b rothers and a nd sisters in legal theory. I tried to make it intelli intelligib gible le to audiences audiences that are not already alread y sort sor t of inured inured in the the common common law syste system m but b ut actual act ually ly are coming coming to itit from from the outside, outside, from outside outside of this this traditi trad itio o n. 31. Very interes interestin ting. g. Do you in any any way way se e that that the the re is some ele ment in in these thes e id ideas ea s that that in some way way ge g e ls with Profe Profess ss or Allot Allott’s t’s view vie ws on international international law? law? If we we b bur ury y e nough of our difference differe ncess that the Eunom Eunomian ian vision vis ion might prevail? prev ail? Yes. We Well ll,, what I’m inclined inclined to think think is that whil whilee the roots of the civil civil tradition tr adition and the roots of the common common law traditi trad ition on are differe different, nt, they’re not radically different. Inevitably, the difference differencess between bet ween us which which in particular particular cases cas es look look very large, when you step back bac k a bit they are much less fundamenta fundamental. l. The impor importance tance,, for example, example, of something like like ongoing ongoing judi judici cial al devel developm opment ent of law law throu throug gh interpretati terpretation on and and precedent precedent is a part of civ civil system systems, s, though though it’s not part of the the civil civil ideology, ideology, and in in the the com co mmon law appro ap proach ach there’s there’ s much more need for, for, and a nd concern conce rn for, a kind kind of o f systematic systemat ic structure of it. Much less tolerance for what what 29 th T. E. Holland said in the late 19 century that comm c ommon on law is a chaos with with an index. index. There There’s ’s not a tolerance for that, that, so s o the drive drive for something like like a more systematic s ystematic approa app roach ch to it. So I think think there are ar e place placess and motivat motivations ions for coming coming together and I hope that, that, in part, par t, in in some of the reflect reflections ions on the common common law that that I’ve eng e ngaged aged in this this book boo k might ight provi pro vide de some basis for that bridge building. 32. Notions of sove so vereignty reignty have figur figuree d prom promin inee ntly ntly in pos positivist itivist thin thinking. king. Th Thee US and the UK used to have have sove s overeign reign parliaments, parliaments, I’m using the te te rm loose loos e ly, and while while the US still has, we no longer do in s ome se nses. nse s. I wonde onde r how you would would characterise the situation here, the the notion of sove reignty in light of the the Comm Commiss ion and the Eur European opean Court of Justice? 29
See “Law's Sys tem: The Neces s ity of Sys tem in Comm Common Law”, G. G. J. Pos tema, 2013. 2013. University University No rth Carolina Legal Studies Research Paper No. 23244 2324438 38 http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2324438
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Righ Right. t. In some ways that’s one of the most intere interest sting ing histor historica icall developments developme nts in Engli Engliss h law, I think. think. Engli Engliss h law has has bee b een n forced in a way that American American law has has not to internat internat ional iona l ise itself. itself. The The American American system can still still be very insul insulaa r. That’s That’s much much harder hard er for the Briti British, sh, for the the English English system. I think think it’s unclear unclear just how how that’s going to develop. In a way, the law here here follows follows the politic politic s rather than lea leads ds it, though though in some respect resp ectss it has to lead it as well, well, but it it reall rea lly y follows follows it, and the the poli po litics tics of that connection connectio n are really really up for grabs, much more more so than back bac k in the ninet nineties. ies. I was seriously considering consideri ng moving moving to London then, t hen, and one of the thin things gs that attrac att racted ted me about abo ut it it at the the time time – and – and teaching tea ching in London – what – what attract attr acted ed me at the time time was what I thought thought was a reall rea lly y dynamic dynamic movement of a kind of o f broade bro adeni ning ng of Engl Englis ish h law into into Europe and a nd a kind kind of o f uni unifica ficatt ion, but I think think that’s much much less less evident evident now. Nevertheless, Ne vertheless, notions notions of sovereig sover eignt nty, y, that is nationa nationa l sovereig sovere ignt nty y and so our legal system sovereig sovere ignt nty, y, are much in question and much much bein b eing g rethought rethought now. I don’t have, myself, myself, a good sense of where that mig might ht go. 33. Profe Profess sor so r Poste ma, that brin brings gs us to the end of this this interview. All that that rem re mains is for me me to thank thank you yo u very ve ry much for a fascinating fas cinating account acc ount which which our re re aders ade rs will will greatly gre atly e njoy, njoy, and a nd liste list e ning to. I hope that that we can ca n follow follo w up in a few fe w months months ’ time when when perhaps perhaps you can give us some of your concludi concluding ng obse rvations rvations on your time time here at Cambrid Cambridge ge.. Th Thank ank you y ou ve ry much. Very good good.. Thank you very much much for this this opportuni opp ortunity. ty.
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