10.2.1 Positivism is Question-Begging

Positivist explanations violate neutrality in a more or less predictable manner: a positivist account of legal obligations cannot afford involving anything other than law-practices in their explanation, on pain of contradicting its own commitment to an understanding of legal phenomena exclusively in terms of their social sources. If positivism left space for legal relations to operate as self-standing grounds of legal obligations, it would be inviting the suspicion that the determinants of law might include elements other than law-practices. Instead, legal relations must be strictly understood as descriptions of the scope of rules which are grounded exclusively in law-practices. Here is Scott Shapiro confirming this picture in his book Legality’:

Accordingly, and setting aside finer nuances of Shapiro’s terminology, legal relations obtain when the law assigns rights, obligations, and powers on the basis of institutional rules whose existence or validity can be accounted for by exclusive reference to law-practices. In other words, from a positivist perspective, there is no room for legal relations to play an independent role as grounds of legal obligations. Instead, any account of the grounds of legal obligations would need to revert to the typically positivist explanation, as exemplified by the long-standing tradition introduced by H. L. A. Hart.Footnote ¹² This familiar story submits that legal obligations are determined, at the most fundamental level, exclusively by social facts, even though a legal system might incorporate other normative (e.g. moral) considerations, on the condition that the standards of incorporation are laid down in a rule of recognition whose existence can be traced back to sources that are exclusively social.Footnote ¹³ In this landscape, the only role left for legal relations is that of describing the scope of whatever, on the positivist story, may count as a legal obligation.

Along these lines positivism embraces the scope-oriented understanding of legal relations and demotes them to descriptions of scope of rule-based obligations, which are ultimately grounded exclusively in law-practices. In ruling out any deeper explanatory role for legal relations, the positivist strategy is begging the question of the explanation of legal obligations in favour of law-practices and, ultimately, positivism. Conversely, to steer away from that fallacy, positivism would need to allow for explanations of relations that do not involve law-practices.

10.2.2 How Non-Positivism Inherits Circularity

To a significant degree, contemporary non-positivism stands out from its predecessors by its effort to pinpoint the question-begging character of positivism.Footnote ¹⁴ Contrary to earlier critics of positivism, contemporary non-positivists ‘do not focus on the classical problem posed by a clash between positive law and natural, as epitomised in the Antigone story, to argue that the former is ultimately subject to an additional test of validity contained in higher morality’.Footnote ¹⁵

Instead, they appeal to an explanatory gap between social sources and legal obligations to demonstrate the question-begging character of positivism.Footnote ¹⁶ The charge they level at positivism is that it cannot bridge the gap between social sources and legal obligations, in order to explain how the latter obtain. The thrust of these strategies is an argument that law-practices cannot determine their own relevance to the content of legal obligations unless further elements are added. As the argument goes, there are multiple (epistemically) possible mappings from the social facts of law-practices to the content of legal obligations, the result being that what we know about the facts of the practice cannot settle which of the alternative candidate mappings from a set of social facts to possible meanings is actual.Footnote ¹⁷ This indeterminacy is then used as a reductio of the positivist notion of validity. Conversely, to counter the threat of indeterminacy the proposed solution is to supplement substantive moral principles which can determine the relevance of social facts and, thus, block the possible deviant mappings.Footnote ¹⁸

However, despite early appearances, the non-positivist strategy fails to set itself altogether free from the predicament of circularity, in the form of a commitment to law-practices at the most fundamental level of law-determination.Footnote ¹⁹ I will argue that the reason for that failure is closely tied to non-positivism’s reluctance to conceive of legal relations independently of law-practices and assign to them an autonomous role in the explanation of legal obligations (what I earlier called the ground-oriented reading of legal relations). As I will turn to demonstrate next, the dominant strand of non-positivism departs only marginally from the positivist understanding of legal obligation, by continuing to regard law-practices as necessary, albeit partial, grounds of all legal obligation.Footnote ²⁰ In effect, these non-positivists end up sharing the basic positivist premise which binds legal requirements to law practices, and merely supplement it with an additional premise requiring moral facts as additional grounds. While the adding of a moral component evades partially the charge of circularity in the explanation of obligations, it does not with respect to relations. For, in confirming the role of law-practices as necessary grounds of legal obligations such accounts also uphold the limited role of legal relations, which continue to appear as the shadows of institutional rules, incapable of materializing outside law-practices. Ultimately, as it turns out, the non-positivist idea of legal relations violates the neutrality constraint as much as its positivist counterpart.

To illustrate the point, think of the broadly Dworkinian strategyFootnote ²¹ of involving principles of political morality to ‘close’ the gap of indeterminacy that arises when social sources are considered as the exclusive determinants of legal obligations. Although involvement of moral considerations might be suitable for tackling indeterminacy, it does not cure circularity entirely. This is because, in any of the known renderings of the interpretivist strategy, the relevance of any pre-institutional moral considerations, appeal to which is rendered necessary for law-determination, is itself conditioned by the law-practices of some legal system. For, to specify in any given case whether and in what manner political morality is involved in law-determination, we need first to refer to the actions taken by legal institutions, including other relevant aspects of the law-practices of a legal system. Be it in terms of a demand for justification that those actions raise, or in terms of their normative footprint on the overall moral profile, these actions together with further aspects of law-practices determine the relevance and extent of the inclusion of moral facts in law-determination.

But this strategy is glaringly weak to escape circularity, if what is needed – when facts of law-practices are absent or cannot steer the explanation of legal obligations – are grounds whose existence does not rely directly on any law-practices.Footnote ²² For no sooner has our appeal to a moral principle of duty of care, which governs the relation between Ms Donoghue and the tortious manufacturer of ginger-beer, been framed by the law-practices of the system – say, the actions taken by the judges – than the relation between the parties fails to operate as an independent explanation.Footnote ²³ It is precisely because this strategy leaves no room for legal relations to operate as independent grounds for legal obligations that contemporary non-positivism ends up conceding the primacy of positivist ontology. By this I mean an account of legal obligations that is, at the most fundamental level, determined by law-practices or a collection of social facts that count as legal in virtue of a master rule of recognition.Footnote ²⁴

10.2.3 Legal Practice as Basic Structure of Governance

Although non-positivists disagree with positivists about the full range of facts contained in the grounding base of legal obligations, they seem to agree that law-practices form a necessary part of that base. How is this convergence of the two camps to be explained? Simplifying a lot, both camps think of law-practices as forming a basic structure of public governance (for short, basic structure), which we usually identify with the existence of law and political association. While the positivist account focuses on the description of the basic structure, what excites the non-positivist imagination is its normative impact on the reasons for action of those governed by it. Meanwhile, both approaches agree that the scope of all relations characterized in terms of legal rights and duties must be confined within the site of a basic structure of law-practices.Footnote ²⁵

As it turns out, the disagreement of the two camps is not about the site or the grounds of the basic structure; it is only about how (the site of) the basic structure contributes to the content of legal obligations. According to the non-positivist account, any determination of legal requirements that cites exclusively collections of facts in the basic structure would be incomplete. For, in virtue of imposing centrally terms of interaction on everyone living under it, the basic structure triggers the morality that regulates the governance of political association.Footnote ²⁶ Although not stated in so many words, an implied premise of the non-positivist line of argument seems to be that individuals are endowed with pre-institutional autonomy or freedom, which triggers a demand of justification, when impacted by the centrally imposed acts of governance of the basic structure. Notably, any such instance of interference with individual autonomy requires that one make additional reference to the justificatory grounds for the interference, in order to work out the obligations imposed by the basic structure. Such grounds consist in so-called principles of political morality (such as justice, fairness, due care, democracy, and so on) and are typically evoked to justify collectively distributed interferences with individual autonomy. Consequently, the way in which the basic structure of public governance contributes to the production of legal obligations is through its moral impact, that is, the way in which actions taken within its remit affect or modify the all-things-considered reasons that pertain to individuals.Footnote ²⁷

Notice, however, the modesty of the non-positivist argument: it draws attention to the relevance of political morality but does not challenge the site of its application. True enough, for any determination of legal rights and duties a contribution from political morality is necessary, but no legal relation can obtain outside the site of the basic structure, precisely because political morality cannot make any contribution to the determination of legal obligations outside that structure. The basic structure delineates the scope of legal relations because it marks the boundaries of the relevance of political morality. Outside the site of the structure, questions about whether some relation is legal or not do not even get off the ground.

Adding moral facts to law’s determinants amounts only to a modest modification of the positivist picture, making as a result contemporary non-positivist positions vulnerable to the same predicament of circularity that is endemic to positivist reasoning. Instead, to overcome these problems, a radical non-positivist strategy must overcome the straitjacket of positivist ontology, or the view that legal relations are limited by the site of the basic structure of law-practices.Footnote ²⁸ To do so, it must reverse the order of the inquiry by posing the question about the grounds of legal relations directly, and only after answering that question to proceed and specify their site. At the same time, a relations-first strategy would need to preserve the valuable intuition that not any moral facts, but only those that pertain to public forms of governance are relevant grounds for legal obligation.

But in the absence of a basic structure of public governance, how can relations trigger facts of political morality and together with them ground the kind of rights and duties that govern legal relations? I will argue in the next section that Kant’s Doctrine of Right provides us with a valuable insight:Footnote ²⁹ his Universal Principle of Right (UPR) may serve as the moral footprint of public governance, independently of the ontology of the specific structure that may exemplify it. As such it serves the role of a ‘compass’ for identifying as legal any relations which can trigger it. Accordingly, it takes the place of a formal ontology of governance and explains the idea of political association and public governance by imposing a threshold demand on interactions between agents: ‘any interaction that triggers UPR counts as an instance of public governance, which is accountable to principles of political morality’. The Kantian strategy, in refocusing the explanation from legal facts to rightful relations, gives explanatory priority to the grounds over the site of legal relations and thereby enables a radical form of non-positivism to take hold, which steers clear of the question-begging positivist ontology of legal relations. To that extent the Kantian legal relation paves the way to a relations-first and radical non-positivism.

10.3.1 The Relational Reading

Kant’s account of legal right centres on his Universal Principle of Right [UPR], which aims to explain legal obligations through the notion of rightful action conceived of in relational terms:

This makes UPR a direct account of legal relations which moves beyond both positivist accounts and those among the non-positivist accounts which rely for the explanation of legal rights and duties on the priority of a basic structure. With respect to positivism, UPR reverses the order of explanation between law-practices and legal relations, by opening the possibility of an explanation of legal obligations that dispenses with appeals to formally ordained legal sources qua necessary grounds. Meanwhile, against those non-positivist accounts that remain wedded to an institutional basic structure of governance, the Kantian UPR offers a way out of the priority of individual autonomy over omnilateral authorization, which otherwise would require a reference to law-practices and the state. I turn next to discuss each of these contributions. Taken together they encourage a full-blown turn to a relations-first account of law.

10.3.2 The Quasi-Lockean Reading

The defended reading of Kantian right clashes with a standard interpretation, which for expository reasons I shall label ‘quasi-Lockean’. On this standard reading, independence is grounded in a pre-institutional principle of individual autonomy, which partly overlaps with Kant’s idea of innate right (IR):

This reading affirms the priority of individual autonomy qua IR and seeks to understand UPR’s relational account of right as derivative. However, in its more sophisticated version, the quasi-Lockean reading introduces an interpersonal dimension to Kantian independence by suggesting that, although grounded in an absolute innate right, it cannot materialize independently of the public institutions of a political community.

To understand why, one must appreciate that pre-institutional autonomy is merely provisional. In contrast, for a full enjoyment of independence persons must acquire conclusive property titles in the material means of their actions. This requirement, eloquently defended by Arthur Ripstein in recent years, relies on an understanding of action whereby securing the means is conceptually prior to setting the ends of the action. To that extent, setting the ends of one’s action independently of the choice of others would require having secured the relevant means: ‘I can choose to Φ only if I can set about doing Φ, which requires that I have a right in the means that enable me to Φ.’Footnote ³⁹ Accordingly, the negation of independence is a state of affairs in which others are equally entitled, in virtue of their innate right, to use the same means when they come to physical possession of them. Importantly, independence breaks down because any act based on the provisional entitlements of each is rendered an instance of unilateral coercion towards others.

This understanding of action, and the idea of independence that informs it, considers conclusive property titles as enabling the independence of an actor because they alone can ground legitimate exclusion of others from the means of her action. The condition of legitimacy requires in turn a system of public law which finalizes provisional entitlements and enforces them in an omnilateral manner, namely, in the name of all those who belong to the same political community. To that extent, pre-institutional individual autonomy (innate right) plays the role of a background structuring ground of legal relations, which however can only be fully constituted by the public institutions of state-based law.Footnote ⁴⁰ Thus, we read in Ripstein: ‘People are entitled to independence simply because they are persons capable of setting their own purposes.’Footnote ⁴¹ And elsewhere, ‘the consistent exercise of the right to freedom by a plurality of persons cannot be conceived apart from a public legal order’.Footnote ⁴² Taken together, these statements amount to the standard liberal understanding of independence and freedom, according to which law is a legitimate external constraint on a pre-existing, unconstrained notion of individual autonomy.Footnote ⁴³

10.3.3 The Rejection of the Quasi-Lockean Reading

Appealing as it might appear at first sight, the standard reading struggles to withstand closer scrutiny, as recent work has suggested. For, it seems to subsist on a mischaracterization of the relation between the two central principles of Kant’s account of legal rights, namely, the UPR (universal principle of right) and IR (innate right). In contrast to the relational reading defended earlier, the standard reading suggests that individual autonomy operates as an antecedent ground of independence which does not rely on the juridical relations between parties. Accordingly, a key strategy for resisting this move requires the inversion of the explanatory priority between the two principles, as I read Katrin Flikschuh to suggest in recent work.Footnote ⁴⁴

On her proposal, UPR subjects the interacting parties to standards that secure the consistency of the action of each with the independence of everyone else. Meanwhile, innate right does not constitute an additional ground of UPR or the relation it specifies, but merely announces or summarizes the moral status enjoyed by anyone who is subject to the requirements of UPR, namely, the status of an agent as independent of the choice of others, because everyone is under an obligation of acting on principles that secure consistency with each other’s independence. Providing ample textual evidence, Flikschuh argues convincingly that UPR specifies the central moral relation in Kant’s account of legal rights, while innate right captures the moral status that pertains to anyone who stands in that moral relation.Footnote ⁴⁵ Accordingly, the general concept of right pertains to a ‘formal, external, strictly reciprocal moral relation’:

Flikschuh’s reconstruction consolidates a reading of Kantian right that moves away from the quasi-Lockean picture and closer to the relational reading that was defended earlier: on the standard view independent persons are understood as ‘each [having] an equal right to exercise [their] power of choice consistently with everyone else having an equal such right’.Footnote ⁴⁷ Conversely, her reading highlights the constitutive role of UPR for independent action: ‘each has a right to being treated by all others as someone who is capable of right action’,Footnote ⁴⁸ in a manner that supports the relations-first reading of Kantian right.

Another notable account that underscores the constitutive priority of UPR over IR has been recently advanced by Rafeeq Hasan and Martin Stone.Footnote ⁴⁹ On this proposal, what distinguishes juridical right within Kant’s division of morality is its provisionality. Importantly, this property grounds a conceptual link between pre-relational entitlements (including innate right) and their fully realized instantiations (as specified by UPR), because a complete explanation of anything that is provisional must involve as ground the conditions of its possibility: ‘provisional right expresses the intrinsic connection between rightful relations and political association by marking the defective character of rights where a state is absent’.Footnote ⁵⁰ Ultimately, on their account, UPR ‘grounds and unifies the domain of juridical principles by exhibiting them as stages of its own explication’.Footnote ⁵¹ Here, as with Flikschuh earlier, the provisionality account vindicates a relational reading of Kantian right, which takes the ultimate ground of independence to be the relation in UPR rather than some self-standing notion of individual autonomy (which in the authors’ account can only be thought of as provisional).

Both these accounts cast serious doubt on the quasi-Lockean reading of Kantian right.Footnote ⁵² Importantly, they identify and remove the misconceived priority of IR over UPR in the explanation of Kantian freedom as independence, which was responsible for demoting legal relations to tools for ‘realizing’ antecedent claims of individual autonomy. In contrast, when the order of explanatory priority between UPR and IR is restored, a compelling new understanding emerges of the relation between rights and legal relations: rights are then grounded in the relation specified by UPR, the legal relation. In this context innate right functions merely as a signpost for the moral status of each of the interacting persons, once they are parties to legal relations.

10.3.4 The Publicity of Legal Relations

Despite the progress made by recent defenders of relational strategies of Kantian right, there remains a key difference from the version put forward in this chapter, whose identification will help us consolidate the possibility of a relations-first or radical non-positivism. Both the account of Flikschuh and the provisionalist one read Kant’s universal principle of right [UPR] as necessitating the existence of a basic structure of legal institutions [basic structure].Footnote ⁵³ In doing so they hold juridical relations to be constitutively dependent on the law-practices of the basic structure.Footnote ⁵⁴

This belief is equally shared by the quasi-Lockean reading of Kant but also other moderate versions of non-positivism, as previously indicated. In these accounts the basic structure is a means for evoking a collective ‘we’-agent, on whose name pre-political individual claims can become binding on others.Footnote ⁵⁵ While the significance of omnilateral justification and the institutions that procure it is obvious for modest non-positivists, it is less clear why a relational account (including those of Flikschuh and the provisionalists) should commit to them. I turn next to two reasons why a relational reading of Kantian right does not necessitate the presence of a basic structure in its explanation of legal relations.

To begin with, any retreat to the basic structure would struggle to account for legal relations as an independent explanatory tool in line with the phenomenology of legal practice.Footnote ⁵⁶ In particular, making reference to the basic structure, qua necessary ground of legal obligations, would revive the problem of circularity that we encountered in positivist accounts of law. Meanwhile, if the requirements of juridical relations are ultimately grounded in institutional sources, then a fresh need to appeal to pre-institutional considerations would arise, in order to counter the indeterminacy of institutional sources.Footnote ⁵⁷

The second reason is deeper and demonstrates why the relational reading of Kantian right is uniquely suited to vindicate the possibility of radical positivism. It points at the redundancy of state law in the context of the relational reading: why turn to law-practices to establish the inter-personal or public dimension of juridical demands if we have already established that the pre-institutional grounds of legal relations are public? Recall our earlier discussion of freedom as independence. Freedom as independence is premised on a particular kind of interdependence from others: one obtaining when each of the interacting parties is acting with a view to the freedom of everyone else. If that is the kind of demand that is grounded by the UPR, then why appeal to an additional source of publicity?

To put it differently, the question of publicity arises about the range of those who can partake in relations of independence. It asks: ‘who can be included in the scope of collectives whose members act on demands that help each to act consistently with the freedom of others?’ It was demonstrated earlier that a typical route for answering this question looks to identify a ‘collective’ agent in whose name the said demands can become binding for all those involved. But there is no symmetric demand to resort to an institutional public structure once we have adopted the relational interpretation of legal rights. For, the UPR bestows on juridical demands a public dimension in virtue of recommending them ‘in the name of’ all those who are parties to the relation.Footnote ⁵⁸ It does so because the demands of independence stipulated by UPR define those requirements as the features of a pattern of interaction whose subject is the joint agent made up by everyone who is under the general, abstract obligation to interact with others in a freedom-consistent manner.Footnote ⁵⁹

But perhaps one might object that a more precise understanding of the omnilateral scope of UPR is needed, for the reason that by removing altogether institutions as necessary grounds of legal relations, we also remove the possibility of accounting for the scope of legal relations through the idea of an omnilateral we-subject. For, that possibility would ultimately require a scaffolding enabling the interpersonal relevance of a domain of interactions. Here the issue is not one of (omnilateral) justification, but the simpler and more basic one about the boundaries and relevance of the legal domain.

To this we must reply by looking closer at how ‘omnilaterality’, qua joint authorship of standards of rightful action, is already incorporated in the normative meaning of UPR. Key in this context is to realize that publicity is part of the practical necessity of UPR: the Kantian principle, in virtue of constituting independence, involves a notion of universalization which is specific to independence. When UPR enjoins ‘according to a universal law’ the stated universality is not the universality of autonomy (as affirmed by the categorial imperative) but the universality of independence, which, I would like to suggest, involves omnilaterality.Footnote ⁶⁰ This is a robust claim whose full demonstration would have to wait for a future occasion. Within the confines of this short chapter, I can only limit myself to a sketchy demonstration. To reflect on the separateness of the universalization that pertains to independence, just think that many of the maxims that would pass the test of universalization under the categorical imperative may fail under the test of independence.Footnote ⁶¹ In other words, the set of valid moral maxims of autonomy is not coextensive with the set of maxims of independence. That much might already be familiar and not terribly surprising. My further suggestion is that the universal test of independence is that of omnilaterality: only omnilateral maxims can pass it. Here is an example:Footnote ⁶² I am standing in a room with others and there is only one chair. Striving toward autonomy, I act on the maxim: ‘occupy chair’. I think this is perfectly consistent with the demands of autonomous agency. But it would, arguably, fail on the demands of independence, precisely because it fails to ground a rightful course of action (i.e. if abided by, it would violate independent interaction among those present in the room). In its stead, a different maxim is in the offing that would enable each one of us in the same room to engage in patterns of action consistent with the freedom of everyone else; perhaps something like ‘occupy chair, unless occupied’; or even better, ‘occupy chair, consistently with the freedom of others’.

I suggest that omnilaterality is this version of universalization that considers (explicitly) the freedom of others, and as a result cares for maxims that require from a plurality of persons to act as an interdependent or omnilateral subject.Footnote ⁶³ If this is not an outlandish suggestion, then omnilaterality and freedom as independence turn out to be co-original. And the Universal Principle of Right, as a pre-institutional moral standard, comes out as constitutive of both.

Where does this leave us? In contrast to the liberal reading, legal rights are not antecedent entitlements that need to be mutually reconciled within an institutional matrix that is acceptable to all. Legal rights, on the relational reading, are grounded from the outset on the interpersonal normative demands of the legal relation.Footnote ⁶⁴ Although a more detailed analysis of these demands escapes the confines of this chapter, they will typically include a principle of fair distribution and a collective duty of care, alongside the class of responsibilities that apply reciprocally to each party to avoid engaging in wrongdoing and other pro tanto unjustifiable acts that one person might commit against another on a particular occasion.Footnote ⁶⁵ Taken together these standards formulate the central qualitative features of patterns of action through which each of the parties to the legal relation acts consistently with the principled actions of the others.Footnote ⁶⁶ Acting on such patterns safeguards the distinctness between personsFootnote ⁶⁷ among pluralities of interacting agents, each of whom is typically in the pursuit of separate systems of ends.