NARRATOR: Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Eric Claeys, Professor of Law at Antonin Scalia Law School at George Mason University. In his scholarship, he studies theories of natural law and natural rights and their implications in property law. Professor Claeys’s main teaching interests include Property, Torts, Jurisprudence, and Intellectual Property. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. PUBLIUS: Professor Claeys, what is jurisprudence? Is it a philosophical approach to law? Is it a tool for judges? Is it useful for making decisions or just an artificial framework for examining law? ERIC CLAEYS: There's no one basic definition of jurisprudence. The word means different things in different contexts. There are three important meanings. In one, jurisprudence is the toolkit of tools that a good appellate judge and a good appellate use when they make arguments about what the law is. And in another meaning, jurisprudence means the legacy or the collected body of opinions of some judge. And in the third meaning, jurisprudence is an inquiry into what law consists of and what law's analytical structure is. Go back to the meaning where jurisprudence consists of the body of work of a judge. We talk about the jurisprudence of Chief Justice Earl Warren, and then we think of the decisions by the Warren Court in different areas of constitutional law. We think of Brown vs. Board of Education, the equal protection decision. We think of decisions about the right to contraception in Griswold, and those are important legacies of Chief Justice Warren. They're part of his jurisprudence. If we're talking about jurisprudence as the toolkit of the sophisticated appellate judge or lawyer, we're talking about a bunch of different ways of thinking about long legal arguments. And so we want to know what is the holding of a case? What is the dicta that are kind of the extraneous arguments made offhand in the case? And we'll talk about rules and precedents. Some rules of law are very linear, rigid, and box- like, and other ones let judges consider lots of different particular circumstances. And those are just a couple of examples of distinctions that appellate lawyers are going to want to work with when they're making arguments, and judges are gonna want to rely on when they craft opinions. And in the last understanding, the philosophical understanding, jurisprudence is the study of what law is and what its analytical structure looks like; one's using analytical philosophy to study law the same way you might study, a social norm as a social concept, or the idea of a right as a social concept; the way you'd study the idea of an association as a social concept or a game as a social concept. When jurisprudence means an inquiry into what law is, there are few questions that are associated with that inquiry. The most basic is this, how do we know when a particular directive we see is a law? And there's a meta- inquiry that goes with this. The question, how do we know a law when we see it gets tied up with what are the criteria that a philosopher would accept as the right criteria, to say whether a particular law is a law. And I guess after that, then there are a few more specific questions, about authority and how laws come to have authority, what authority means, and then what are the senses in which laws create obligations on the people that are bound to follow them. I'd say those are the four main topics that inquiry into jurisprudence as an analytical area would consist of. PUBLIUS: Let’s talk more about the relationship between law and philosophy. Do you need to be a good philosopher to be a good lawyer? ERIC CLAEYS: Law and philosophy are similar in some ways and different in others. They're similar in that they work through rules and exceptions, and they work through abstract concepts. A philosopher and a lawyer will both understand there's some directive, and you need to gather evidence and arguments to know whether the directive applies and then they can go forward and apply the relevant evidence and principles to figure out how to apply the directive. Law is more final and settled than philosophical inquiry is. In philosophical inquiry you can always keep asking questions. In law, there's a point at which people just have to say, we need to know what the answer is or what the outcome is. So, take one real concrete example. How do we regulate the way people drive on roads next to each other? A philosopher's happy to know that there are basic rights to travel and basic rights to the security of one's person and one's car, and a philosopher would want to work out the bounds of both of those rights and how they ought to be coordinated. At some point the lawyer's going to say yes, but people need two numbers or three numbers for particular speed limits in different areas, and a lawyer will at some point stop being interested in the abstract rights and be more interested in what needs to be done to develop the specific numbers that are going to coordinate behavior. So the legal training and philosophical training can be similar. There are a couple of differences around the margin. Both in philosophy and in law, there are principles, and the principles have reach, and the principles need to be justified. And people need to know how far the principles apply. And so in both disciplines, hard questioning by the instructor can force students to think and force students to understand what is the relevant principle, why is it right, in what circumstances might it not be right, how far does it apply, and what countervailing concerns make it stop applying. In law, I think the inquiry tends to be a little bit different in some respects, because at some point the lawyer needs to know that there's a settled answer So then when different authorities and law come into conflict, the lawyer needs to know that they can be in conflict, but the lawyer wants a way to resolve the conflict, and the lawyer's not gonna be happy if at the end of the day you say: really any of these one or two, three or four, five principles apply, and it's just a matter of taste which one of the supplies; and I think a philosopher in some context would be comfortable with that. But in both contexts, questioning about what is the rule, Why is the rule the rule, how far does it apply, and how do we reconcile it to other rules; those are very similar. A good lawyer needs to be able to make arguments, a good lawyer needs to be able to anticipate other people's arguments, and a good lawyer needs to understand that every argument has lots of underlying premises. And, a lot of argument that lawyers make in practice requires them to make an argument, and kind of not come forward with the premises right away, so a good lawyer on the other side then needs to say: no, no, no, you've just made a claim with a lot of premises that you've kind of hidden from the court, and it's not easy to be able to spot someone else's premises and bring them out. Philosophical inquiry studies in a real systematic way the relationship between premises, arguments, and conclusions. And so, good philosophical training helps the lawyer be able to work from starting principles to conclusions and go back. PUBLIUS: Do you have a specific way that you teach jurisprudence? What kind of discussions do you encourage in the classroom? ERIC CLAEYS: When I teach jurisprudence, I make two pitches to the students, in the first day of class. I warn them that jurisprudence is not for everybody, it really isn't. But there are two skill- sets one can get from studying jurisprudence. One skill- set is to be a master of a lot of the standard moves that appellate lawyers make. I hope that students come away understanding that a case has a holding, and it's got extraneous parts called dicta. I hope they come away understanding that statutes can be interpreted in a lot of different ways, and there's certain familiar moves one makes with interpreting statutes. Different legal rules have different structures. Some are very formal and some are very open texture. There's differences between categorical rules in all the circumstances, balancing tests; and a jurisprudence class can make a student come away more comfortable with all those different tricks of the trade. But then also, the other skill set I hope that a student comes away with from studying jurisprudence is just to be reflective on what law is and what a lot of the problems are in knowing what law when one sees it. This is not something that has any concrete immediate payoff in any field of law, but it relates to some very basic questions about what a lawyer is in a just society, and how one navigates authority when there are a lot of different legal rules that might all control and none of them obviously do. And a lawyer who understands what great thinkers have thought about what law is and what its limits are, can be more reflective and discerning about navigating those tough choices when they come up in practice. PUBLIUS: What are some of the universal themes or theories covered in a jurisprudence course? In your scholarship, you focus on Natural Law. How do you present a Natural Law perspective in this class, and is that different from how other professors might approach jurisprudence? ERIC CLAEYS: In a contemporary jurisprudence class, there are maybe five big positions worth thinking about. And there are scholars that have taken each of these positions and still do in contemporary scholarship. There's the classical natural law position, and then there's a set of scholars who call themselves Dworkinians or they're fellow travelers of Ronald Dworkin. There are positivists, and there are two kinds of positivists: inclusive positivists, and exclusive positivists. And then there are people who tend to be skeptical that there's anything interesting to think about or talk about in jurisprudence, and they tend to go under the flag of the realists. Natural law is another phrase that means things in different contexts. Natural law can refer to a theory of morality that applies to people in their own individual lives. This is natural law ethics, and in this sense, natural law is a set of principles that helps people discern for themselves what good things are and what they need to do to be happy, well rounded, flourishing people. In another context, natural law is a set of principles that regulate and guide communities as they try to work out the bounds of communal life. And so there, natural law consists of a set of principles that guides a political community or a group of people even who aren't in a government to say, what do we need to do so that everybody individually in this community's happy and we have a common good that's a substantial and promising common good. In one last usage, natural law makes claims about what law is, and this is natural law being used in an analytical sense. And in this sense, a natural law position holds that law is just to the extent that it serves the common good of a community. And when one tries to identify the basic features or the basic elements of natural law, the law's tendency to make for just community is one of the key features of it being law. I wouldn't say natural law comes from anywhere. Natural law is a way of thinking about the world, and one uses reason to identify things in the world that just are true. So take for example, a proposition about identity. It just has to be the case that certain things have identifying features or an identifying category and, it would be impossible for people to talk to each other if certain things didn't have identities, so they could be points of reference and conversation. Now move the realm of morality. It's a premise of natural law thinking that there are certain things in life that are basically good. It's good for living things to live. It's good for people to associate with each other, and reason can identify the things that are good. And if we reflect real systematically about the things that are good and the kinds of behaviors that help us get what's good, we can develop a set of rules for behavior that will help us get what's good. And so natural law consists of a set of teachings that have come by smart people's reflecting about what's going to contribute to people's good. Natural law is not necessarily religious. Many people who are religious believe in or subscribe to principles of natural law. But principles of natural law are supposed to be accessible to reason without resort to religious authority. PUBLIUS: In the following episodes, we’ll discuss specific theories and philosophers who approach jurisprudence from the Natural Law tradition and from other perspectives. Let’s end with a simple question about a basic premise for all of them - Why do we need laws? ERIC CLAEYS: Human nature's a complex thing, and it has lots of implications, but if you understand human nature, you understand the reasons why law is a helpful institution for people to have. Law is an institution that helps people realize their basic ends. Rational creatures, can make free choices, but they can make free choices badly. People are rational, but they don't know everything, and when they're dealing with lots of other people, they can't anticipate what all the people around them can do. Different people could create specific different institutions or organizations to get the goods they want. And so, because people are imperfect, because people are not omniscient, and because people can't out of their own heads come up with specific institutions to coordinate how everybody behaves; people all need law for all those reasons, to help bring them together to create a common infrastructure, in which people deal with each other, and then to create, mechanisms to punish people if they act badly and to give them the freedom to act well. Human nature is constant. Human nature needs laws to do a few basic things, but human nature isn't so fixed that the laws have to have some specific contact. A just law is going to be directed toward the common good, it's gonna be made by a few people that others recognize as being in charge, and it's going to be promulgated, but then the details of lots of laws can different one place or the other. A lot of the things that law does reconcile a lot of different goods, and the law has to respect all those goods as goods, but it can structure the way a particular society works in one way and not in another way. Think of a speed limit. You can imagine two communities and both agree everybody has rights to safety and rights to travel, and any justice system of law has to respect both those rights and coordinate both those rights. But you can imagine one community of people thinking, we like to travel, and we like to grow fast, and another community saying, travel's a necessary evil for us, and we are a little scared of cars, and you can end up with two different speed limits. And those two speed limits are both respecting people's best basic natural rights. But you have two different communities with two sets of different shared preferences about the trade-offs between, speed and security, and you have two different limits. And you can also have situations where the, an economy changes or society changes, and so the laws are going to change to reflect these basic preferences, but the laws can change and stay just laws within certain limits, those limits relate back to making sure that the laws are respecting the basic rights of the people, and helping them flourish in ways that are truly just and good ways to flourish. NARRATOR: Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class! TRANSCRIPT - VERBATIM FOR YOUTUBE Thanks for joining this episode of the No. 86 lecture series, where we discuss classical and modern Jurisprudence. Today’s episode features Eric Claeys, Professor of Law at Antonin Scalia Law School at George Mason University. In his scholarship, he studies theories of natural law and natural rights and their implications in property law. Professor Claeys’s main teaching interests include Property, Torts, Jurisprudence, and Intellectual Property. As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker. Professor Claeys, what is jurisprudence? Is it a philosophical approach to law? Is it a tool for judges? Is it useful for making decisions or just an artificial framework for examining law? There's no one basic definition of jurisprudence. The word means different things in different contexts. There are three important meanings. In one, jurisprudence is the toolkit of tools that a good appellate judge and a good appellate use when they make arguments about what the law is. And in another meaning, jurisprudence means the legacy or the collected body of opinions of some judge. And in the third meaning, jurisprudence is an inquiry into what law consists of and what law's analytical structure is. Go back to the meaning where jurisprudence consists of the body of work of a judge. We talk about the jurisprudence of Chief Justice Earl Warren, and then we think of the decisions by the Warren Court in different areas of constitutional law. We think of Brown vs. Board of Education, the equal protection decision. We think of decisions about the right to contraception in Griswold, and those are important legacies of Chief Justice Warren. They're part of his jurisprudence. If we're talking about jurisprudence as the toolkit of the sophisticated appellate judge or lawyer, we're talking about a bunch of different ways of thinking about long legal arguments. And so we want to know what is the holding of a case? What is the dicta that are kind of the extraneous arguments made offhand in the case? And we'll talk about rules and precedents. Some rules of law are very linear, rigid, and box- like, and other ones let judges consider lots of different particular circumstances. And those are just a couple of examples of distinctions that appellate lawyers are going to want to work with when they're making arguments, and judges are gonna want to rely on when they craft opinions. And in the last understanding, the philosophical understanding, jurisprudence is the study of what law is and what its analytical structure looks like; one's using analytical philosophy to study law the same way you might study, a social norm as a social concept, or the idea of a right as a social concept; the way you'd study the idea of an association as a social concept or a game as a social concept. When jurisprudence means an inquiry into what law is, there are few questions that are associated with that inquiry. The most basic is this, how do we know when a particular directive we see is a law? And there's a meta- inquiry that goes with this. The question, how do we know a law when we see it gets tied up with what are the criteria that a philosopher would accept as the right criteria, to say whether a particular law is a law. And I guess after that, then there are a few more specific questions, about authority and how laws come to have authority, what authority means, and then what are the senses in which laws create obligations on the people that are bound to follow them. I'd say those are the four main topics that inquiry into jurisprudence as an analytical area would consist of. Let’s talk more about the relationship between law and philosophy. Do you need to be a good philosopher to be a good lawyer? Law and philosophy are similar in some ways and different in others. They're similar in that they work through rules and exceptions, and they work through abstract concepts. A philosopher and a lawyer will both understand there's some directive, and you need to gather evidence and arguments to know whether the directive applies and then they can go forward and apply the relevant evidence and principles to figure out how to apply the directive. Law is more final and settled than philosophical inquiry is. In philosophical inquiry you can always keep asking questions. In law, there's a point at which people just have to say, we need to know what the answer is or what the outcome is. So, take one real concrete example. How do we regulate the way people drive on roads next to each other? A philosopher's happy to know that there are basic rights to travel and basic rights to the security of one's person and one's car, and a philosopher would want to work out the bounds of both of those rights and how they ought to be coordinated. At some point the lawyer's going to say yes, but people need two numbers or three numbers for particular speed limits in different areas, and a lawyer will at some point stop being interested in the abstract rights and be more interested in what needs to be done to develop the specific numbers that are going to coordinate behavior. So the legal training and philosophical training can be similar. There are a couple of differences around the margin. Both in philosophy and in law, there are principles, and the principles have reach, and the principles need to be justified. And people need to know how far the principles apply. And so in both disciplines, hard questioning by the instructor can force students to think and force students to understand what is the relevant principle, why is it right, in what circumstances might it not be right, how far does it apply, and what countervailing concerns make it stop applying. In law, I think the inquiry tends to be a little bit different in some respects, because at some point the lawyer needs to know that there's a settled answer So then when different authorities and law come into conflict, the lawyer needs to know that they can be in conflict, but the lawyer wants a way to resolve the conflict, and the lawyer's not gonna be happy if at the end of the day you say: really any of these one or two, three or four, five principles apply, and it's just a matter of taste which one of the supplies; and I think a philosopher in some context would be comfortable with that. But in both contexts, questioning about what is the rule, Why is the rule the rule, how far does it apply, and how do we reconcile it to other rules; those are very similar. A good lawyer needs to be able to make arguments, a good lawyer needs to be able to anticipate other people's arguments, and a good lawyer needs to understand that every argument has lots of underlying premises. And, a lot of argument that lawyers make in practice requires them to make an argument, and kind of not come forward with the premises right away, so a good lawyer on the other side then needs to say: no, no, no, you've just made a claim with a lot of premises that you've kind of hidden from the court, and it's not easy to be able to spot someone else's premises and bring them out. Philosophical inquiry studies in a real systematic way the relationship between premises, arguments, and conclusions. And so, good philosophical training helps the lawyer be able to work from starting principles to conclusions and go back. Do you have a specific way that you teach jurisprudence? What kind of discussions do you encourage in the classroom? When I teach jurisprudence, I make two pitches to the students, in the first day of class. I warn them that jurisprudence is not for everybody, it really isn't. But there are two skill- sets one can get from studying jurisprudence. One skill- set is to be a master of a lot of the standard moves that appellate lawyers make. I hope that students come away understanding that a case has a holding, and it's got extraneous parts called dicta. I hope they come away understanding that statutes can be interpreted in a lot of different ways, and there's certain familiar moves one makes with interpreting statutes. Different legal rules have different structures. Some are very formal and some are very open texture. There's differences between categorical rules in all the circumstances, balancing tests; and a jurisprudence class can make a student come away more comfortable with all those different tricks of the trade. But then also, the other skill set I hope that a student comes away with from studying jurisprudence is just to be reflective on what law is and what a lot of the problems are in knowing what law when one sees it. This is not something that has any concrete immediate payoff in any field of law, but it relates to some very basic questions about what a lawyer is in a just society, and how one navigates authority when there are a lot of different legal rules that might all control and none of them obviously do. And a lawyer who understands what great thinkers have thought about what law is and what its limits are, can be more reflective and discerning about navigating those tough choices when they come up in practice. What are some of the universal themes or theories covered in a jurisprudence course? In your scholarship, you focus on Natural Law. How do you present a Natural Law perspective in this class, and is that different from how other professors might approach jurisprudence? In a contemporary jurisprudence class, there are maybe five big positions worth thinking about. And there are scholars that have taken each of these positions and still do in contemporary scholarship. There's the classical natural law position, and then there's a set of scholars who call themselves Dworkinians or they're fellow travelers of Ronald Dworkin. There are positivists, and there are two kinds of positivists: inclusive positivists, and exclusive positivists. And then there are people who tend to be skeptical that there's anything interesting to think about or talk about in jurisprudence, and they tend to go under the flag of the realists. Natural law is another phrase that means things in different contexts. Natural law can refer to a theory of morality that applies to people in their own individual lives. This is natural law ethics, and in this sense, natural law is a set of principles that helps people discern for themselves what good things are and what they need to do to be happy, well rounded, flourishing people. In another context, natural law is a set of principles that regulate and guide communities as they try to work out the bounds of communal life. And so there, natural law consists of a set of principles that guides a political community or a group of people even who aren't in a government to say, what do we need to do so that everybody individually in this community's happy and we have a common good that's a substantial and promising common good. In one last usage, natural law makes claims about what law is, and this is natural law being used in an analytical sense. And in this sense, a natural law position holds that law is just to the extent that it serves the common good of a community. And when one tries to identify the basic features or the basic elements of natural law, the law's tendency to make for just community is one of the key features of it being law. I wouldn't say natural law comes from anywhere. Natural law is a way of thinking about the world, and one uses reason to identify things in the world that just are true. So take for example, a proposition about identity. It just has to be the case that certain things have identifying features or an identifying category and, it would be impossible for people to talk to each other if certain things didn't have identities, so they could be points of reference and conversation. Now move the realm of morality. It's a premise of natural law thinking that there are certain things in life that are basically good. It's good for living things to live. It's good for people to associate with each other, and reason can identify the things that are good. And if we reflect real systematically about the things that are good and the kinds of behaviors that help us get what's good, we can develop a set of rules for behavior that will help us get what's good. And so natural law consists of a set of teachings that have come by smart people's reflecting about what's going to contribute to people's good. Natural law is not necessarily religious. Many people who are religious believe in or subscribe to principles of natural law. But principles of natural law are supposed to be accessible to reason without resort to religious authority. In the following episodes, we’ll discuss specific theories and philosophers who approach jurisprudence from the Natural Law tradition and from other perspectives. Let’s end with a simple question about a basic premise for all of them - Why do we need laws? Human nature's a complex thing, and it has lots of implications, but if you understand human nature, you understand the reasons why law is a helpful institution for people to have. Law is an institution that helps people realize their basic ends. Rational creatures, can make free choices, but they can make free choices badly. People are rational, but they don't know everything, and when they're dealing with lots of other people, they can't anticipate what all the people around them can do. Different people could create specific different institutions or organizations to get the goods they want. And so, because people are imperfect, because people are not omniscient, and because people can't out of their own heads come up with specific institutions to coordinate how everybody behaves; people all need law for all those reasons, to help bring them together to create a common infrastructure, in which people deal with each other, and then to create, mechanisms to punish people if they act badly and to give them the freedom to act well. Human nature is constant. Human nature needs laws to do a few basic things, but human nature isn't so fixed that the laws have to have some specific contact. A just law is going to be directed toward the common good, it's gonna be made by a few people that others recognize as being in charge, and it's going to be promulgated, but then the details of lots of laws can different one place or the other. A lot of the things that law does reconcile a lot of different goods, and the law has to respect all those goods as goods, but it can structure the way a particular society works in one way and not in another way. Think of a speed limit. You can imagine two communities and both agree everybody has rights to safety and rights to travel, and any justice system of law has to respect both those rights and coordinate both those rights. But you can imagine one community of people thinking, we like to travel, and we like to grow fast, and another community saying, travel's a necessary evil for us, and we are a little scared of cars, and you can end up with two different speed limits. And those two speed limits are both respecting people's best basic natural rights. But you have two different communities with two sets of different shared preferences about the trade-offs between, speed and security, and you have two different limits. And you can also have situations where the, an economy changes or society changes, and so the laws are going to change to reflect these basic preferences, but the laws can change and stay just laws within certain limits, those limits relate back to making sure that the laws are respecting the basic rights of the people, and helping them flourish in ways that are truly just and good ways to flourish. Thank you for listening to this episode of the No. 86 Lecture series on Jurisprudence. The spirit of debate of our Founding Fathers animates all of the No. 86 content, encouraging discussion and critical reflection relative to how each subject is widely understood and taught in law schools and among law students. Subscribe to the No. 86 Lecture series on your favorite podcast platform to have each episode delivered the moment it’s released. You can also go to fedsoc.org/no86 for lectures and videos on Federalism, Separation of Powers, the Judiciary and more. Thanks for listening. See you in class!