ECLT Seminar (co-hosted with ECIGL): ‘Estrangement from Law’
Location:
Neil MacCormick Room,
Old College
Date/time
Mon 23 September 2024
16:00-18:00
This is a seminar organised by the Edinburgh Centre for Legal Theory together with the Edinburgh Centre for International and Global Law. The speaker David Lefkowitz, from the University of Richmond, will be presenting his paper on ‘Estrangement from Law’.
Our seminars consist of a 30-minute presentation given by the author, followed by a 60 to 90-minute Q&A. This is not a pre-read event, but the paper will still be circulated beforehand through our mailing list. To subscribe, please send an email to edinburgh.legal.theory@gmail.com.
Author bio: David is Professor of Philosophy and Philosophy, Politics, Economics and Law (PPEL) at the University of Richmond. His research interests span three overlapping areas: (1) the morality of obedience and disobedience to law (e.g. the basis, if any, of a moral duty to obey the law, the moral justifiability of civil disobedience, the just treatment of conscientious objectors); (2) analytical and normative issues in international law (e.g. the nature of customary international law, the legitimacy of international law, the existence (or not) of an international rule of law and its implications); and (3) substantive moral questions in the conduct of international affairs (e.g. the morality of secession, the just conduct of war).
Abstract: Suppose we use the label ‘law’ to refer to a particular form of government, one premised on its participants’ fidelity to the regulative ideal of the rule of law. To perceive a particular practice of government as a token of the legal type, then, requires that an agent attribute to the (other) participants in the practice a commitment to that regulative ideal. Yet people inevitably disagree over what counts as governing in accordance with the rule of law; that is, conduct that exhibits fidelity to the ideal. Therefore, the judgment that one is enmeshed in a legal practice of government always involves an element of faith, a belief that the other participants share the same fundamental commitment to the rule of law that you do despite their acting in ways that strike you as contrary to it. In this lecture I explore two scenarios in which participants in particular practices of government can lose this faith, or perhaps fail to cultivate it in the first place. The first occurs when, in HLA Hart’s words, “acceptance of the rules as common standards for the group… [are] split off from the relatively passive matter of the ordinary subject acquiescing in the rules by obeying them for his part alone.” The second scenario occurs when an actor suspects that the other participants in a practice of government do not share her understanding of what makes fidelity to the rule of law valuable. In both scenarios, actors suffer estrangement from practices they cannot perceive to be law, a phenomenon well-captured in David Dyzenhaus’s plaintive question: “but how can that be law for me?” Concretely, I propose to diagnose these two types of estrangement from law, trace their implications for the estranged actor’s practical reasoning, and consider some mechanisms for assuaging her doubts as to the genuine legality of the practice in which she is enmeshed. More abstractly, I hope to illustrate the promise of religious motifs for theorizing law; that is, a practice of government premised on faith in the regulative ideal of the rule of law.