Penn Undergraduate Law Journal: What attracted you to the philosophy of law, and what is your particular area of interest in the field?
Mitchell Berman: Philosophy of law is pretty broad. Traditionally, the central concern in legal philosophy has been, “What is law?” or “What is the nature of law?” Another major topic is sometimes called the problem of political obligation. It asks whether we have a moral obligation to obey the laws. I have written very little on these fundamental topics.
My first interests in law and legal theory were in constitutional law and criminal law. I’m interested in both of these areas because of the normative problems that they raise. Of course, criminal law implicates in obvious and straightforward ways questions regarding the relationship between the individual and the state. It concerns the application of the state’s overwhelming physical force against the individual. Criminal law therefore invites us to ask a host of questions about the moral justifiability of state practices.
For the past handful of years I have been working in three main areas– American constitutional law and theory, philosophy of criminal law, and the philosophy of sports. As it happens, my work in constitutional theory has bled over into the big question in general jurisprudence that, as I noted, asks about the nature of law.
PULJ: Does your study of normative concepts cross over into the field of etymology, psychology, or history?
MB: I’m interested in the nature of normativity and the structure and content of normative concepts. Mostly my interest is philosophical. What does it mean to have a right? What is a right, exactly? What are duties? What is consent, coercion, or desert? What are penalties and how do they compare to punishments on the one hand or to prices on the other? How does justification work? All these concepts, and many more like them, are central parts of our normative thinking and our normative practices. They crop up when we are thinking about morality, or the law, or even about sports and games.
Now, we all have at least a rough and ready idea of what these things are—what rights are, what desert is, what constitutes coercion, and so on. And for many purposes this rough grasp is good enough. But sometimes we have to sharpen our understanding of these concepts—how they fit together and what they consist of. And then it can turn out that there are some aspects that are pretty mysterious. So trying to sort out some puzzles, and deepen and sharpen our understanding is mostly a philosophical project. It involves careful thought and precise and sometimes quite nuanced distinctions. In some cases, however, the inquiry will be informed by the disciplines you mention—history, psychology, etymology, and others too.
Take etymology. Insofar as we’re interested in exploring our concepts, we’re going to be interested in the close relationship between our concepts and the words we employ for the concepts. You might get a better handle on the nature of those concepts by paying close attention to the etymology of the word and also to its patterns of usage.
PULJ: You’ve recently examined the differences between new originalism and old originalism. Can you describe those differences?
MB: Sure, but I’ll have to provide a little background.
I should start by noting that I’m a critic of originalism. I absolutely agree that the original meaning of parts of the constitutional text matter for purposes of what judges ought to do and for purposes of figuring out what the law is. I also believe that a variety of intentions of the framers and ratifiers matter too. That is, we should care about what they intended to say in the text, and about what legal powers, rights, and duties they intended the text to create, and even what they intended or hoped to accomplish in the world. In sum, lots of things that the originalists think matter, I, as a non-originalist, think matter too. The difference is that originalists by and large think that some particular thing that is fixed at a particular historical moment—what some snippet of constitutional text meant in 1789, or what some actual persons intended to communicate—is the only thing that matters, constitutionally speaking. Orthodox originalists have maintained, for example, that judges are obligated to follow just the original meaning or just the original intention of the framers or ratifiers. I believe that that focus is much too narrow. I’m a pluralist about constitutional law. I believe that historical practice and contemporary values, among other things, also bear on what judges should do and on what our constitutional rights, duties, and powers are.
Notice that I have put the points I have tried to make in two different ways. I have spoken both about what the law is and about what judges should do. Although constitutional theorists today are offering many competing views about what tenets are part of “new originalism” and about how newer originalist theories are best distinguished from their predecessors, I believe that the difference is best understood in light of this simple distinction—the distinction between what the law is and what judges should do.
Before this century, almost all theories of constitutional interpretation—originalist and non-originalist—spoke in terms of what judges ought to do. Take Robert Bork, a first-generation originalist who was nominated for the Supreme Court and famously rejected by the Senate. He argued that judges ought to follow the original intention of the framers. Almost all originalists spoke in similar terms, and many still do. In much the same way, non-originalists would argue: “Judges ought to pay attention to lots of considerations. They shouldn’t just follow the original notion. They should pay attention to the structure of our constitution or to our constitutional history or to moral consideration.” In short, for most of its history, originalism—just like non-originalism—has been a theory, or a family of theories, about what judges ought to do. These are what I call “prescriptive theories” because they account for what you ought to do – “pay attention to this, don’t pay attention to that.”
There’s another way to think about constitutional interpretation. One might wonder, “What is the law? What are our constitutional rights?” Let’s suppose you and I are arguing, before Obergefell [v Hodges] was decided, about the constitutionality of same-sex marriage. I might say, “The court ought to rule in favor of the plaintiff.” Why? “Because,” I will say, “same-sex couples have a constitutional right to marry.” Of course, I’m not claiming that an authoritative judicial decision has already held this. I’m saying the court should hold this because it is a true statement of what our constitutional rights (already) are, even though not everybody recognizes that to be so. And you, my adversary on this question, will deny precisely this. You will say that there is no constitutional right to marry somebody of the same sex.
Or take another dispute. Before the [District of Columbia v.] Heller case on gun control, you might have said, “The Second Amendment confers a constitutional right for people to possess guns even outside of military service.” And I might have responded: “No, it doesn’t. People don’t have such a right.” So notice that these sorts of debates, which are very, very familiar, aren’t debates really about what courts ought to do. Or they may be about what judges should do, but not at bottom. At bottom, they’re debates about what our legal rights are, and only derivatively about what judges should do, or say, or decide.
If you think about controversial issues of constitutional law in this way, it might occur to you that a useful theory of constitutional interpretation will provide answers to questions about what the law is—about whether it is true that Congress has this or that legal power or about whether it is true that individuals have this or that legal right. Now, a theory of constitutional interpretation won’t provide such answers directly. “Do same-sex couples have a constitutional right to marry?” is too concrete a question to be addressed directly by a theory of constitutional interpretation that is more general or abstract. Rather, a theory of constitutional interpretation might tell us the general truths about how legal facts are constituted and thereby allow us to infer or deduce the more specific legal answers that concern us in any given litigation. This would be a “constitutive theory” of constitutional interpretation, not a “prescriptive” one. It aims to explain how legal facts get the contents that they have.
And this is precisely what newer forms of originalism are up to. The center of gravity of contemporary originalism is the claim that the law is what the text says. What the words on the page mean is what the law is. This is a constitutive theory, not (in the first instance) a prescriptive one. That is, it does not, on the face of things tell us what judges, or anybody else, should do; it tells us what determines or constitutes legal facts or legal norms. Of course, in virtue of its generality, it doesn’t directly tell us whether there is a constitutional right to marry somebody of your same sex or whether there is a constitutional right to possess firearms. But it does tell us what facts will determine the answers to those questions. It says that whether people have this or that constitutional right depends just on what the “objective” or “public” meaning of some portion of the constitutional text was at some particular moment in time.
What I’m saying is that old originalism was principally a “prescriptive” theory of what judges should do, or what reasons they should entertain, whereas new originalism is principally a “constitutive” theory of what makes out the law.
As I’ve mentioned, I’m not an originalist of either type. I believe that the law is made up of more things than just what the text means or what particular privileged persons intended. And I believe that judges ought to pay attention to a greater variety of considerations when reaching decisions. I’m not alone on either score. Originalism is not the favorite theory of constitutional interpretation among constitutional scholars or legal theorists. Philosophers of law, generally speaking, don’t understand the attraction of originalism at all, and most American constitutional scholars and theorists are non-originalists of one stripe or another.
All that said, I think that critics of originalism have not adequately appreciated the importance of this recent shift in emphasis. Even though I believe, as most legal philosophers and constitutional theorists believe, that new originalism is mistaken, just as old originalism was mistaken, I think new originalism should be applauded for its changed focus.
New originalism has the potential to shift the theoretical discussion in productive ways by inviting or pressuring all of us, originalist and non-originalist alike, to stop speaking so much about what judges should do and start speaking a lot more about what are the “determinants” or “constituents” of constitutional norms. That’s very helpful. And once we speak in those terms, then non-originalism has to give an account about those determinants instead of just saying courts ought to do this or courts ought to do that. In my own work, and in work co-authored with the legal philosopher Kevin Toh, I’m trying to articulate a pluralistic account that identifies the ingredients that jointly determine or constitute constitutional rights, duties, and powers, and that explains how the disparate ingredients combine. My account won’t be originalist, but is spurred on, in a sense, by the change from older originalism to newer originalism.
PULJ: How do you think knowledge of the philosophical foundations of law can help an attorney or a judge in practice?
MB: I think it’s certainly not necessary for a lawyer or judge to know much or perhaps anything that could be characterized as “philosophical foundations” of law. Presumptively at least, it’s desideratum of a sound theory of law’s “philosophical foundations” that it shows our existing practice to be in basically good working order. To be sure, it’s possible that our existing practice is not in good order. It’s possible that what judges do and what ordinary lawyers do is fundamentally mistaken in some ways. But that seems unlikely. It seems more likely that a deeper and richer understanding of law and legal practice will explain why what’s mostly going on makes sense.
Here’s an analogy I offer my students. There are a lot of problems that are difficult; here’s one. It turns out that it’s a hard problem to figure out how to judge the trajectory and distance of a batted ball hit directly toward you. When the ball is hit away from you, you can see the trajectory, and you can see how far it’s going to travel. But it’s hard to know how far a ball will go when it’s hit right at you. And yet, a fielder in baseball can do it. A good outfielder doesn’t need a theory of how to figure out based on the sound of the ball or its initial trajectory off the bat, or what have you, how far it’s going to go. He can correctly anticipate the ball’s landing spot even though he doesn’t know how he can do it. Similarly, you and I can ride a bike even if we don’t understand the mechanics of it. Roughly speaking, this is the difference between knowledge-how and knowledge-that. We often know how to do this or that even if we don’t know the facts that explain or account for it.
I think constitutional practice is sort of like that. A good theory should vindicate our practice in broad strokes. That doesn’t mean it won’t require some corrections. I think a good theory would show that what we’re doing is sort of sensible and it’s consistent with what the law is. If that’s basically right, then competent practicing judges and lawyers might find themselves completely unaffected by advances in legal philosophy.
If all this is so, why bother with constitutional theory at all? One reason is because critics come around and challenge the notion that attorneys and judges are doing, more or less, as they should. Originalism was born out of criticism of the Warren Court, mostly in the 60s and 70s. Conservative commentators said, in effect: what the Supreme Court is doing is all wrong. Our system is not in good order, judicial decisionmaking in constitutional cases is fundamentally mistaken. As every observer knows, this is a central thrust of Justices Antonin Scalia and Clarence Thomas: the Court’s constitutional jurisprudence is corrupt or diseased at the core.
In the face of this radical challenge, lawyers, judges, politicians, and ordinary citizens are all right to wonder: “Is that so? Are we making a big mistake? Do we need to change our practice, or can a philosophical justification be given for what we’re doing?” The account I’m developing says “The conservative challenge is wrong. Constitutional practice has been generally defensible. Here’s why our practice has been basically in good order all along.” If a good judge reads and is persuaded by my account, she can be reassured. But she doesn’t need to understand philosophical foundations to do her job well. I think it’s a mark against a philosophical theory of law if it proposed that practitioners need the theory. Practicing scientists don’t need to know much or any philosophy of science. Much the same is true about law.
PULJ: You’ve written quite a bit about law and sports. Could you talk about your work in that?
MB: I work in a field that I call the jurisprudence of sports. I think it’s fair to say that I’ve created the field. I’m not exactly the father of the field because it’s not clear that anybody else is really working in yet. But if and when they do, I’ll be the father.
The jurisprudence of sport is helpfully contrasted with sports law. Sports law concerns the regulation of sports by law. It concerns the application of antitrust law to sports leagues, the application of contract and agency law to player representation agreements, the application of labor law to the employment of players by teams, and so forth. I don’t study these topics. I know very little about them.
The jurisprudence of sport is predicated on the notion that we can think of organized sports as legal systems in their own right—systems that can be profitably compared to and contrasted with ordinary legal systems, and not as domains that are subjected to regulation by these ordinary legal systems. Or, if you prefer, you might think of sports, not as legal systems exactly, but as complex institutionalized normative systems that are close cousins to legal systems and present many of the same problematics.
I’ll give you an example of the types of questions that interest me. The NFL has a system of instant replay to review contested on-field calls. Under the NFL’s system—and the NCAA’s too, for that matter—referees aren’t allowed to overturn a call unless there’s “indisputable visual evidence” that the call was mistaken. In law talk, I’d say that is a standard of appellant review. And it’s an incredibly demanding, or deferential, standard. It is a more demanding standard than any standard known to Anglophone law. It’s more demanding than the reasonable doubt standard of proof used in criminal cases. So the question that immediately occurs to a legal theorist is: why so demanding? Oddly, you never hear anybody ask that question. Announcers emphasize routinely that a call cannot be reversed unless it’s indisputable that the call was wrong, but they don’t tell us why it has to be indisputable. Is such a demanding standard warranted? Is it justified? Does that make sense?
I wrote an article that investigated why it is such a demanding standard. Here’s a reason to be a little troubled by it. There’s good reason to think we’re going to have more total errors through such a deferential standard than if we had a non-deferential standard. Simply put, if the league instructed referees to overturn calls whenever they conclude—after reviewing the call in super slo-mo, high-definition, from multiple camera angles—that it is more likely than not the initial call was wrong, we would get more error corrections. We would have fewer errors at the end of the day than under the indisputable evidence standard. So then I ask, why don’t we do that? And it turns out that running that question to ground forces us to grapple with a surprisingly large number of issues that are relevant to any complex regulatory system—issues about desert, entitlement, and justice, tradeoffs between actual justice and the appearance of justice, finality and correctness, status quo bias and loss aversion, and so on. So by examining the rules and practices of sport through a legal-theoretic or “jurisprudential” lens we can learn all sorts of interesting things about sports and about law.
I hope someday to teach a course on these issues to undergraduates. The working title is “Sport: An Introduction to Law.” I think that students can learn a lot about what law is like and about what legal education involves by grappling with questions that arise in areas of life with which they are already familiar. How should rules be written—in crisp, sharp-edged terms or in looser standards? How much enforcement discretion should officials have, and why? Should they be authorized to enforce (some) rules less strictly at “crunch time”? Why and which ones? When should ties be allowed to stand and how should they be broken? What is cheating and how is it distinguished from gamesmanship? When should the adage “no harm, no foul” apply? When should a player’s “intent” matter, and when shouldn’t it? When, if at all, does fairness demand “a level playing field,” as by taking steps to reduce the influence of inequalities of wealth? Is it okay to have separate competitive tracks for men and for women and, if so, what are the implications for “separate but equal” in other domains of life? These are the sorts of questions I’d like to explore with undergraduates.
PULJ: That’s a very interesting way to look at it. Do you think that any characteristics of a country of a sport’s origin reflect itself in the way that sport is officiated?
MB: I do. There’s a really interesting book by Michael Mandelbaum, a highly respected foreign policy expert at Johns Hopkins, entitled “The Meaning of Sports.” It’s about the main American sports—baseball, football, and basketball—and talks about how they represent different aspects of the American culture and history. It examines how the different times in which they’ve been most popular, and during which they’ve developed most, bear on the practices we see. The same or similar analyses have been made in a cross-cultural context.
Compare soccer and football. They’re very different in lots of ways that plausibly reflect differences in underlying social or legal practices or commitments. American football is very legalistic. The NFL rulebook is very thick. Same with hockey and baseball. The soccer rulebook is very thin. It contains a small handful of rules. There is a lot more precision in the NFL. American football fields are all uniform, and soccer pitches aren’t. Soccer pitches are allowed to vary within very broad constraints. The NFL uses seven on-field officials; soccer uses one referee and two assistant officials who have the power only to recommend calls to the referee. American football times and measures things very precisely whereas, in both respects, soccer is much looser. In soccer, you might see a throw-in occur ten yards from where the ball went out of bounds, and referees calculate stoppage time in a wholly impressionistic manner. The claim is that these superficial differences reflect deeper differences between British and American culture. I’m not an expert on these matters at all, but your instinct that sport rules and practices, including practices of officiating, reflect deep cultural and historical facts is certainly right.
Another point is that soccer sub-communities have very different attitudes towards lots of behaviors. The best example might be flopping. The common wisdom is that in Latin cultures flopping is taken to be permitted, for a price. It is true of many rules, in sports and in law, that regulated parties treat the rules that say “Do not X; and if you do X, the penalty is Y” to mean “You may do X at risk of incurring price Y.” That’s how many people believe corporations treat environmental laws, for example. It’s also how Latin cultures—painting with a broad brush here, of course—view flopping. The rules say “do not flop,” but soccer players and fans in Spain, Italy, and Latin America (among other places) take that to mean “it’s okay to flop, but if you do, you might be penalized.” Compare American football. The NFL rules say: “do not hold.” But everyone treats holding by an offensive lineman as permitted per a price: you’re allowed to do it, but sometimes you’ll get caught and your team will have to pay a price. In basketball, we understand that fouling has evolved in such a way that the right understanding of the rules, at least with respect to fouling at the end of a close contest to stop the clock, is that you may foul your opponent and thereby put him at the free-throw line. My point is that there are much-commented-upon cultural differences regarding whether the no-flopping rules in soccer really are prohibitions (“Don’t flop!”) or really are priced permissions (“Flop if you want, but be prepared to pay.”) The common wisdom is that Latin cultures, by-and-large, treat flopping as permitted like any other tactical option, whereas in other cultures, especially northern European and Asian cultures, participants tend to take the rules that say “don’t flop” as a sincere prohibition. That’s not to say no one in these other cultures does intentionally flop. Of course they sometimes do. The thought is that, when they do, they understand themselves to be breaking a rule. That’s just one example of a case where national culture is thought to influence sport practices and understandings.
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