Rob Mullins: Law, Relational Norms, and Deontic Language

This month Legal-Phi is talking to Robert Mullins. Robert has recently completed his PhD in Philosophy at Oxford and is now a Lecturer in Law at the University of Queensland TC Beirne School of Law, Australia.

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Welcome to Legal-Phi, Rob! What brought you to philosophy? And why did you end up working on legal philosophy?

Rob: Thank you for having me. I drifted into legal philosophy partly by accident. I did my undergraduate degree in law. Like many Australian law students, I did a ‘dual degree’, which means you study for an arts degree along with a law degree. (I did take a legal philosophy course, but I don’t remember enjoying it that much at the time.) My first arts degree was in English literature. As an English literature student I found myself increasingly interested in debates about meaning and interpretation, so I decided I wanted to read more philosophy. I was lucky enough to be given a scholarship to study at Oxford. When I got there I took a second BA in philosophy, and then went on to do the BPhil. After all that I found myself back in the law faculty doing my doctorate in legal philosophy. Now I teach in the law school at the University of Queensland.  So I feel like I’ve gone full circle, in a way.

You’ve written about relational norms in your doctorate. What are relational norms? Is there any place for such norms in law?

Rob: ‘Relational norms’ was my chosen term of art for norms that regulate our various special relationships (like family or friendship). Some philosophers use other language to describe them: reasons of partiality, associative obligations, special obligations, obligations of involvement. If I had my time again I might have chosen one of these terms, but I chose the phrase ‘relational norms’ because I wanted to convey the variety norms that regulate our relationships. After reading an early draft of some of my thesis material Les Green pointed out to me that friends do not just have special obligations towards each other, they have special permissions and special powers. So I wanted to draw attention to these types of norms as well.

The law has a role to play in supporting relational norms. It does many things to promote and protect our relationships. It purports to do this through marriage and family law, for instance. In Bull v Hall, Lady Hale claimed that the institution of marriage exists ‘to provide a legal framework within which loving, stable and committed adult relationships can flourish’. But there are limits to the law’s ability to promote relationships and relational norms directly. Legal intervention threatens intimacy.  Many relational norms are also vague or imperfect and ill-suited for incorporation in law.

In the Methods of Ethics Sidgwick identifies an approach to moral theory which he describes as ‘jural’ or ‘quasi-jural’, which aims for law-like precision in the formulation of moral norms. I think that relational norms also help to show the limits of quasi-jural theorising of this sort. They are not hospitable to the kind of legalistic reformulation that Sidgwick had in mind. Applying quasi-jural methods to these relationships would distort our understanding of their content and value.

Am I right to assume that role-based rights and duties (or what is commonly called ‘role obligations’) fall into your definition of relational norms? Do you think that what grounds role-based rights and duties necessarily differs from what grounds other (non-relational) rights and duties? It strikes me that it may not be easy to ground role-based rights and duties on personal value or interests, since one may have role-based rights and duties that go against their personal value or interests.

Rob: Yes—many relational norms are also role obligations, though obviously not all role-obligations are relational. There is nothing particularly relational about being a police-officer. On the other hand many relationships do involve roles—the parent-child relationship involves the role of parent and the role of child.

Many of our roles are burdensome, and centred on the interests of others rather than our own. As my friends who are parents often tell me, fulfilling the responsibilities of parenthood can be time-consuming and exasperating. But there is also a sense in which these roles are good for us even when they are burdensome. Some philosophers—David Owens and Joseph Raz are among them—argue that the burdens of associated with relationships are good for us, because without them the relationship could not be realised. (Owens actually goes a step further, and argues that the assumption of obligations towards others is part of the value of a relationship).  If this is right, then it is not hard to argue our role-based rights and duties are at least partly grounded in our interests in having them.

In my thesis I defended this claim, and I am still willing to defend it. However I have one worry about it that it is worth mentioning: I worry that it trivialises self-sacrifice. Don’t parents make real sacrifices, for instance? The account seems to suggest too neat a relationship between our interests and the interests of others. (This problem is similar to the problem that faces Moorean theories of value, since they also deny the possibility of conflicts between prudential and moral reasons.) I suspect that there is something to be said in response to this challenge, but I am not yet satisfied I know what it is.

Some of your work deals with the deontic language in law and morals. You’ve recently published a paper entitled Detachment and Deontic Language in Law’ where you try to salvage the distinction between committed and detached statements from recent criticism. Could you briefly explain what are committed and detached statements and then tell us why do you think the distinction still holds despite some attempts to take it down?

Rob: Joseph Raz popularised the distinction between detached and committed statements (though he attributes the distinction to Kelsen). A committed statement communicates commitment to a norm or set of norms. If I make the committed statement ‘you ought to dance’ then I am communicating my own commitment to the norm that requires you to dance. Detached statements occur where I somehow manage to communicate the existence of a set of norms without communicating my commitment to them. Raz offers the example of someone who warns their vegetarian friend not to eat a dish containing meat by saying ‘you ought not to eat that’. They have no commitment to the norm, but they are still citing it qua norm for the benefit of their friend.

A lot of people have found Raz’s way of making the distinction mystifying. Critics of Raz’s account include Eugenio Bulygin, Luís d’Almeida, Scott Shapiro and Kevin Toh. One problem is at various times Raz seems to suggest that the difference is in terms of the semantic contents of the statements: a statement like ‘you ought not to eat meat’ has different truth-conditions when it is uttered in detached and committed ways. If we accept anything like an orthodox semantics of deontic language, this is implausible.

In my recent paper I tried to show how the distinction could be rescued by appealing to the pragmatics of legal statements. I think that deontic statements are presumptively committed, in the sense that they carry what H.P. Grice called a ‘generalised conversational implicature’ to the effect that the speaker is committed to the norms they are citing. If I make a statement like ‘you ought not to eat meat’, then ordinarily I communicate my commitment to the norm of vegetarianism.  Detached statements occur when this presumptive commitment is cancelled either contextually or explicitly by the speaker. For instance, if I were speaking to my vegetarian friend, and I was not a vegetarian, I could say ‘you ought not to eat that, it has meat in it, but I personally think you have no reason to care’. This is explicitly cancelling the implicature to the effect that I endorse the norms of vegetarianism. At any rate, that is the argument I made in my paper.

You also link discussions about deontic language to traditional debates in legal philosophy about legal positivism. Could you explain how discussions about deontic language can impact our understanding of legal positivism?

Rob: Most debates in legal philosophy aren’t linguistic. When we have debates about the nature of law or legal obligations we aren’t just debating the meaning of words like ‘law’ or ‘obligation’ or sentences like ‘Lucas has a legal obligation’. But we do use deontic language to describe the law, and to formulate philosophical theses about the law, so it can be helpful to understand how we use that language. If we make a philosophical claim about the law that is at odds with our ordinary language, then we ought to be aware of that.

Legal positivism is often (not always) associated with the social facts thesis, which has lots of different possible formulations. The broadest possible formulation is that all legal facts are grounded in social facts alone. I have a very short recent paper in which I make the observation that there might be facts about what legally ought to be the case that are not grounded in social facts alone. This is because for any set of relevant social facts, we can often reach conclusions about what legally ought to be the case by applying various closure rules, and it is implausible to think that these closure rules are themselves grounded in social facts. What logicians call ‘deontic detachment’ rules provide one example. Suppose there is a law passed saying ‘legally you must fill out a tax return’ along with another law, ‘legally, if you fill out your tax return, you must submit it on 1 July’. I conclude from this that legally I must submit a tax return by 1 July.  But I reached this legal conclusion by applying a further detachment rule to the initial norms.  The validity of this detachment rule is not in itself a matter of social fact. Here is a different example, this time involving closure under logical consequence. A law is passed forbidding all subjects from playing musical instruments. I conclude from this that legally, I must not play the trombone. The law did not mention the trombone; I reached the latter conclusion by applying logical closure to the initial law. But the rule of logical closure is not itself a matter of social fact.

One way out of the problem is to apply the social facts thesis to legal rules, rather than all legal facts. Whether or not a legal rule is valid will depend on social facts alone.  I think this position is related to what Alchurron and Bulygin describe as the ‘expressive conception’ of norms. According to the expressive conception, rules are not proposition-like entities. There is no logic of rules. However, there can also be deontic propositions, which depend for their truth on the existence of these rules, but which may be reached by applying further logical rules. My proposal is just that we see the social facts thesis as applying to the rules themselves and not to deontic propositions.

You’ve also written a piece defending that police misconduct is a public wrong. What is a public wrong? And why do you think police misconduct is a species it?

Rob: The part of Australia where I grew up and where I work, Queensland, has a long history of police misconduct and corruption. Brisbane in the 1980s was memorably described by one local punk band as ‘Pig City’. (There is a book called Pig City by Andrew Stafford, which is a concurrent history of police corruption in Queensland and of the local music scene, which gave us bands like The Saints and The Go-Betweens).  Most of us rightly take it for granted that police misconduct is a bad thing. I thought it might be useful to try to explain why.  I’m not sure if I convinced myself, but I tried to sketch the argument that police misconduct is a form of public wrong.

You can use the phrase ‘public wrong’ in a variety of ways. Obviously police-misconduct involves legal wrongs committed by public officials, so they are public wrongs in that trivial sense.  I tried to develop the argument that police misconduct is a public wrong of a different sort—that it is the sort of wrong that the public has an interest in calling to account. My explanation was role-based. Legal officials like police-officers have role obligations to uphold the rule of law, which the rest of us do not have. When they breach these obligations, they commit a wrong that we have a collective interest in calling to account.

Future projects?

Rob: I would like to work more on legal reasoning—particularly on common law reasoning. But for the time being I will be revisiting some of the material in my thesis.

What kind of work in legal philosophy would you like to see published more often?

Rob: Academics probably publish too much, not too little. I also wouldn’t presume to chastise my colleagues about what they should publish! Still I think I would like to see more work in the history of legal philosophy. I have become more aware of how valuable it is when philosophers place their arguments in some sort of historical context. For instance, Luís d’Almeida’s Allowing for Exceptions begins with an extremely careful exegesis of Hart’s work on defeasibility. Kristen Rundle’s Forms Liberate also makes an important contribution by placing the Hart-Fuller debate in some sort of historical context, and trying to unbundle the different philosophical preoccupations of both Hart and Fuller. Hart’s Essays on Bentham is an older example. This sort of work is very valuable. I like reading new and creative philosophy as well. But if progress is possible in legal philosophy, then I think we ought to know from what we are progressing.

Biggest challenge as a graduate student? Any advice to current graduate students and early career colleagues?

Rob: I think I was surprised at how solitary the life of a graduate student could be. By the time you are working on your thesis, you are working on a large project in a relatively solitary way. As my studies progressed I got involved with Oxford’s Jurisprudence Discussion Group, and I found it helpful and enriching to have discussions with fellow students about law and philosophy. I think it took me too long to realise how important it was to make these sorts of connections. My advice would be to not make the same mistake.

What are the two most underrated papers in legal philosophy in your opinion?

Rob: I don’t know whether they are the most underrated (for all I know these papers are already rated very highly), but two papers I like and which make arguments I would like to see discussed more are:

Incidentally, Toh’s paper is a review article. I think it’s a great illustration of the academic value of book reviews. In Australia book reviews are given no weight at all by hiring or promotions committees. I think the situation is pretty similar in the US and UK. And I think it is a great shame. Some of my favourite papers are book reviews. My thesis supervisor, John Gardner, has written some wonderful reviews and review essays.

How do you generally spend your free time? Any hobbies?

Rob: I like watching live music with my friends, and I go to the cinema as often as I can. When I lived in the UK I used to cycle a lot, but since coming back to Australia I’ve been getting more into swimming. I’m trying to take advantage of living close to so many great beaches.

Could you list two books in philosophy and two books outside philosophy that have influenced your views? And could you briefly tell us why they have influenced you?

Rob: Early on my doctorate I ended up getting lost in the weeds thinking about reasons—exclusionary reasons, enablers and disablers, intensifying and attenuating reasons. I stumbled across John Horty’s Reasons as Defaults, which was a revelation. Horty’s book is a wonderfully clear, rigorous and insightful guide through the subject.

Like many people who have looked at the philosophy of the family, I admire Susan Moller Okin’s Justice, Gender and the Family. Okin was a brilliant political philosopher and I wish she were still alive. Her reductio ad absurdum of the Lockean theory of property in Ch. 4  is one of my favourite passages of philosophy. There are not many philosophical arguments that can make you laugh.

Outside of philosophy, I love George Eliot’s Middlemarch for all the reasons that so many people love Middlemarch. The character of Casaubon is also such a wonderful skewering of the scholastic temperament. I think every academic has a little bit of Casaubon in them. We just have to hope we don’t have too much!

A year or two ago I finally got around to reading Patrick White’s Voss, which is the fictionalised retelling of Ludwig Leichardt’s doomed attempt to cross the Australian continent. He is difficult to read, but White is one of the great chroniclers of our inner lives, particularly our attachments and emotional connections. Voss contains the line ‘human relationships are vast as deserts: they demand all daring’. I thought about that line often when I was finishing my thesis.