What Nature, what Law?

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Malecka_webpageFillafer.smallby Franz L. Fillafer (MW Fellow 2014-2015) and Magdalena Malecka (MW Fellow 2013-2015) (*)

This is a report on the Max Weber Multidisciplinary Workshop: The Politics of Law and the Behavioural Sciences. Historical Contexts and Conceptual Sources, held on 13th of May at the EUI

Law’s relationship to ‘nature’ was long taken to determine its prestige and legitimacy as a science as well as its capacity to provide a toolkit for governance. Current research on law, as well as approaches to policymaking, are marked by an increasing interest in the findings of the behavioural and cognitive sciences. These observations prompted us to initiate the research project that was inaugurated with the workshop The Politics of Law and the Behavioural Sciences: Historical Contexts and Conceptual Sources hosted under the aegis of the EUI in mid-May. The meeting was an exciting experiment that brought together historians, philosophers, lawyers, and political theorists from several countries. It provided a site where participants could interrogate the relationship between law and nature in novel ways.

The study of the nexus between law and nature does not merely satisfy antiquarian curiosity, instead the talks and interventions of our participants immediately highlighted the considerable political purchase of the enquiry we pursued. Our initial idea for the event originated in a shared feeling of discomfort and puzzlement about current law- and policymakers’ reliance on ‘scientific’ knowledge about the ostensible regularities that underly human conduct: these data allegedly enable legislators to shape citizens’ choice architectures and environments, to incentivise, enhance, and discourage behaviour.

We believe that this ill-conceptualised reliance on the alleged behavioural regularities of nature, while being a crucial issue in itself, is also highly topical because it constitutes a subordinate, parasymptomatic effect of a yet bigger problem that concerns the very identity of law as a coercive and normative order: if law should ideally adjust to the purported order of nature, how can it at the same time continue to act as an order that countervails ways of behaving, actions, and ‘natural’ or ‘instinctual’ inclinations? Our project aims at throwing into relief both the historicality of this problem and its present-day pertinence.

In order to achieve these aims it is indispensable to identify the recurrent patterns and tropes that lie behind the references to nature that legal theorists, lawyers, and policymakers make. This enables us to grasp the functional structure of these references to nature and naturalness in law.

Our workshop started with four deft and crisp expositions of the early modern facets of this problem. Catherine Wilson (York), Matthew Hoye (Maastricht), Stephen Bogle (Glasgow) and Ann Thomson (EUI) looked at the argumentative substructure of references to nature between 1600 and 1800 in Europe. This group of papers beautifully fleshed out two overlapping themes: first, the Epicurean challenge to the Christian-Stoic conception of the pristine and primeval precepts of nature as evinced by revealed religion. Second, the empirically informed subversion of immutable anthropologies and the medical, historical-philological and natural historical practises used to to this end.

Hoye, Bogle, and Thomson followed these refractions of law’s relationship to nature by focusing on three fields: on the Hobbesian account of natural jurisprudence with its implications for the sanctioned maxims of princely rule and for the conditions of popular consent it elicited; on Calvinist Scottish lawyers’ attempt to strike a balance between nature-induced human depravity and rational, responsible action as a prerequisite for legal relationships; on French eighteenth-century materialists’ jettisoning of the belief in an essentially benign and divinely ordained nature and on the ethical predicaments caused by this shift.

In the second block of our event Leone Niglia (Exeter) offered a broad-ranging and trenchant discussion of the problems of ‘naturalness’ and of legal institutes as a set of inherited, historically conditioned artifacts in the era of codifications. José Brunner (Tel Aviv) dwelt on individual narratives in the aftermath of human rights violations and on their truth value as recognised by the courts. Brunner reflected on how (narrative) truth can become part of an assumed natural human makeup, but also about how states refashion themselves from being an agent of prosecution and enforcement to becoming a truth-facilitator (thereby also diagnosing a possible surreptitious shift from truth to therapy).

Finally, Agata Bielik-Robson’s (Nottingham) paper brilliantly confronted presumptions about ‘naturalness’ and law by locating it in the tradition of what she identified as a ‘nomotropist’ desire, a specific Western tradition of thinking about nature as the source of normativity. She retrieved the ethical and epistemological contradictions that result from imparting ‘nature’ with immanent and overriding norms. In locating the baleful sociopolitical implications of this investment into nature, Bielik-Robson connected her superb exposition to the promise and perils of the biopolitical paradigm.

The stimulating discussion during our workshop crystallised around several crucial questions. The supremacy of immutable, all-encompassing and constant nature can be reappraised if one retrieves the layers hidden under an apparently solid crust. One option for this kind of interrogation is to structure the inquiry around the transition from the principles that nature evinced or enacted for human beings to follow (vivere secundam naturam) to the observable natural regularities of human behaviour. Another option consists in arranging the research strategy around the divide between ‘normality’ and ‘anomaly’ in the sense that it poses the question whether rights are derived from human beings’ ‘natural’ deficiencies/depravities or capacities.

It became clear to us during the conference that we will get a firmer grip on the problem by adopting a conceptual framework that permits us to foreground the functions and representations of references to nature that supposedly informed and continue to inform legal thought and practice. Instead of focusing primarily on notions and accounts of the laws of nature, on natural laws or on human nature, this will enable us to follow a specific set of references through adjacent but seldom connected fields and to reconcile the study of intellectual pursuits with the study of concrete practises. Here the challenge consists in drawing a vertical line of inquiry that slices through past and contemporary problems in order to filter out key tropes and schemes.

This approach should enable us to identify the recurrent patterns of nature that have been emulated, perhaps also replicated or simulated in legal-political contexts. It will also give us the opportunity to investigate in a more refined way the relationship between ‘nature’ and ‘naturalness’ as sanctioned, recognised, or complicated by the law. These guiding questions inspire two crucial and continuing emphases within our project. The first one concerns practises: how did religious or scientific styles of enquiry impart law with its function as being corrective of or conducive to ‘human nature’, what subsidiary governing techniques emerged in conjunction with these techniques, and what underlying anthropologies were bound up with the practises deployed? The second emphasis concerns the proliferation of and rivalry among different sources of scientific authority when it comes to modelling law and legal action after nature (e.g. biology and psychology).

Clearly these reflections are highly relevant if one wishes to tackle the dilemmas present in contemporary thinking about the law: the interlocutors in the current discussion about law’s desirable or nefarious adjustment to ‘nature’ either seem locked in a vicious circle or to talk past each other. One group of scholars and philosophers deplores a process that increasingly divests law from the perceived principles, hierarchies and precepts of nature; these authors castigate the sanctioning of ‘unnatural’ practises which they take to originate in this process (particularly as regards pre-implantation diagnostics, genetic modification etc.). A different constituency pleads for law’s adjustment to ‘human nature’ (natural behavioural regularities) in order to give policymakers the required tools for moulding citizens’ behaviour. A third group marshals ‘natural law’-inspired objections to exploitation and dependency-relationships and sees the ills of contemporary society and its legal frameworks as resulting from its increasing self-liberation from nature.

The philosophical premises of all three positions are shaky. All three strands fail to conceptualise ‘nature’ in a coherent manner, and this is also the case because each of them uses ‘nature’ as a self-explanatory point of reference and source of legitimacy. There is no reflection on the presuppositions behind these references, and neither on their structure and history. One of the aims of our project is precisely to clarify how these references work, to expose their implications for law and society, and to thereby complicate such references in general.

The success of our meeting at the EUI, by all standards an excellent venue for interdisciplinary encounters, encouraged us to further pursue this project. We will continue to follow the basic tension we have identified between law’s role as adjusting to and countervailing ‘nature’, we will clarify the conceptual resources behind these assumptions and the epistemological predicaments they entail. We next plan to publish a selection of the papers delivered at our workshop and will also begin to plan another conference that we hope to hold next year.

(*) The MWPBlog is a platform for MW Fellows to address scholarly topics and comment on current affairs. The thoughts expressed in the posts represent solely the views of the posting Fellows and not of the Max Weber Programme