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Monday, March 30, 2015

Hart's rule of recognition -- not recognised by Grice!

Speranza

Alexy quotes from Grice, as he should.

In a telling passage in his treatise of 1945, General Theory of Law and State, Hans Kelsen appears to depart from his traditional concept of law.

The traditional concept is “defined” by Kelsen in terms of the possibility of coercion as set by the reconstructed legal norm.

He now appears to be replacing this concept of law with another:

"if one looks upon the legal system from the dynamic point of view it seems possible to define the concept of "law" in a way quite different from that in which we have tried to define it thus far".

"In particular, it seems possible to ignore the element of coercion in defining the concept of law."

What Hart would have as 'oblige' versus 'obligate'.

According to this view, Kelsen continues

"law is anything that has come about in the way the constitution prescribes for the creation of law."

"For example, an important stage in the law-creation process comprises the procedure by means of which general norms are created, that is, the process of legislation."

In the latter passage, Kelsen is clearly hinting at the "Stufenbaulehre" or doctrine of hierarchical structure that he took over lock, stock, and barrel from his gifted, and much neglected, colleague, Adolf Julius Merkl.

Do we indeed have, then, two competing concepts of law in Kelsen’s legal theory, the earlier concept turning on coercion, the later concept reflecting the process of law creation?

Some think not.

On the contrary, as we shall argue, the two concepts of law to which Kelsen refers here are in fact two sides of a single concept of law or – in language that Kelsen adopted from Wilhelm Wundt and the Baden Neo-Kantians – two standpoints, two points of view (Betrachtungsweisen), that are incorporated into a single concept of law.

Earlier, there is a static or ex post point of view, where the focus is on the issued legal norm and thus on coercion, and, later, there is a dynamic or ex ante point of view, antedating the issuance of the legal norm and thus emphasizing the process of law creation.

These points of view are combined in a SINGLE (non-ambiguous) concept of "law" that reflects both product and process, or – in the language of Kelsen’s General Theory of Law and State – both coercion and law creation.

As we shall see, the Stufenbaulehre – and the conceptual machinery that can be drawn from it – is central to the entire enterprise, profoundly informing our reading of Kelsen’s ramified concept of law.

We have to review develop some of the rudiments of Kelsen’s earlier concept of law, based on coercion, Kelsen’s later concept of law, which turns on law creation, and his utilization of the so-called complete legal norm – another of the doctrines he drew from Adolf Julius Merkl.

Here Kelsen himself, bringing together the two concepts of law to which he refers in General Theory of Law and State, in effect shows that they are in fact two sides of a single, ramified concept of law.

Moving beyond the basic structure, we have to approach a problem that Kelsen had confronted in his legal theory from the beginning, namely, the “essence of the objective law” and the “ideal linguistic form” of the legal norm, as he puts it in his first major treatise, Main Problems in the Theory of Public Law.

This background from Main Problems, illuminating Kelsen’s quest for a defensible concept of law, shows that more was at stake from the very beginning than the offhand references to coercion might suggest.

We could try a thought experiment drawn from John Locke, Merkl, and H.L.A. Hart -- alla Grice.

In Kelsen’s hands, as the thought-experiment makes clear, the functions represented by law issuance and law application – or, in Kelsenian parlance, the functions represented by the empowerment to issue norms and by the empowerment to impose sanctions – supplant the original, directive function of the law.

To be sure, the so-called directive function survives in Kelsen’s theory, but in an emasculated form, as the function or purpose of law qua social technique. “Function” with respect to its source is ambiguous. The so-called directive function of the law is not numbered among the legal functions per se. Rather, it stems from a source outside of “the cognition of the positive law”.6 It stems, in other words, not from the ideal world of the law but from the empirical world of fact.

Our aim, in short, is to go beyond the standard reading of the Stufenbaulehre or doctrine of hierarchical structure, as the notion pertains to Kelsen. It is well known that the doctrine served to relativize the differences between law creation and law application, and thereby to relativize the standing of the different species of law themselves. As Kelsen puts it, reflecting on the significance of the Stufenbaulehre, Merkl “relativized what had ossified into the absolute: the opposition…between general and individual norm, between abstract and concrete norm.”7 In short, Kelsen points out that both the tradition in legal theory and he himself in Main Problems ignored an entire spectrum of legal norms, those between general statutory provision and concrete legal act. The only way to set things straight, Kelsen argues, is to follow Merkl’s graduated scheme, which exhibits all the levels of legal norm in the legal system, from the most general constitutional and legislative norms to the most concrete legal acts. Legislation, the standard-bearer of nineteenth-century statutory positivism (Gesetzespositivismus), loses its privileged position, a point that is, to be sure, a fundamental contribution of the Vienna School of Legal Theory. But there is more. The Stufenbaulehre bears directly on Kelsen’s concept of law, and this is the point I wish to develop here.

In his discussion of coercion in the First Edition of Reine Rechtslehre or Pure Theory of Law, Kelsen introduces the notion by appealing to four separate motifs, with attention to a different aspect of coercion in each of them. He does not speak, expressis verbis, of coercion qua concept of law, but in General Theory of Law and State, as we have seen, he points to coercion as the hallmark of his earlier concept of law. And what is more, the four motifs taken together do appear to stand for a concept of law.

What, then, are the four motifs?

There is, first, coercion as differentia specifica of the formal category of norm, second, coercion as empirical criterion of the law, third, coercion as a proper part of the reconstructed legal norm, and, fourth, coercion vis-à-vis Kelsen’s doctrine of the identity of state and law. The motifs overlap, of course, and I shall invite attention to the overlap at several points.

Kelsen is, perhaps unlike Hart, and SURELY unlike Grice, decidedly ambivalent on the status of ethics -- vide Grice on the valuational priority of 'moral' over 'legal' in "Prejudices and predilections", Philosophical Grounds of Rationality: Intentions, Categories, Ends. Clarendon Press.

To make sense of this initial motif, one has to begin with the genus that Kelsen goes on to differentiate. The genus, he tells us, is “[t]he formal category of norm”, the category “designated by ‘ought’”.8 Here the norm is undifferentiated and applies therefore in all of the normative fields, say, logic, philology or prescriptive linguistics, aesthetics, ethics, and the law.9 How, then, is the legal norm to be differentiated? “[T]he legal norm”, Kelsen writes, “is a coercive norm (a norm providing for coercion)”, and it is precisely thereby that “the legal norm is distinguished from other norms.”10


Kelsen goes on to speak of the coercive element as an “empirical criterion” of the law,11 a line that might well be read with puzzlement, for Kelsen also argues again and again that “the law is norm”.12 The law is, in other words, not empirical at all but “ideal”,13 a position that reflects the fact-value distinction championed by the Baden Neo-Kantians.

Matters of fact exist and are found in the external world, but the law qua norm “obtains”, is “valid”, in a second world.14 This claim of Kelsen’s is captured by the import of his “formal category of norm”, above.

Still, Kelsen’s point here that coercion is an empirical criterion of the law can perhaps be saved by arguing that just as, for Wittgenstein, pain behaviour is an empirical or outward CRITERION of pain,15 so likewise, for Kelsen, the coercive element is properly understood as an empirical criterion of the law, which, for its part, is not empirical but ideal.

 
To be sure, coercion qua criterion proves to be a more complex doctrine than it appears on first glance to be. For Kelsen is referring not only to the imposition of coercion but also to conformity to the law, which, he argues, is motivated by the wish to avoid subjecting oneself to coercive measures. Kelsen is quick to add that the wish to avoid subjecting oneself to coercive measures is scarcely the only reason people conform to the law.

And if the notion of conformity to the law qua empirical criterion were fully worked out, it might well swallow the coercive element whole.

The party identifying the law by appeal to the reworked criterion would not be unlike the “cognitive observer” in H.L.A. Hart’s theory (not a representative of the INTERNAL point of view, but one who nevertheless knows the rules that the representatives of the internal point of view follow).

 
From the beginning, Kelsen speaks of the need to arrive at the “ideal linguistic form” of the legal norm18 in order, inter alia, to distinguish the law from morality. The results of his inquiry are captured in the expression “reconstructed legal norm”.19 In the present context we consider the reconstructed legal norm only in so far as Kelsen’s coercive element bears on it.

    This is Hart’s primary rule.

    Kelsen writes that coercion is “essential for the legal character of the norm”,20 and that the secondary legal norm,21 for want of the coercive element, “cannot be an essential expression of the law”.22 The “mode specific to the law”23 is reflected in the hypothetically formulated or reconstructed legal norm, which links “a human being’s behaviour, regarded as socially harmful, with a coercive act, perceived by that human being to be an evil”.24 In the earlier 1930s, before Kelsen had come expressly to the conclusion that empowerment is the fundamental modality in the law, his most elegant statement on the reconstructed legal norm was found at section 11(b) in the First Edition of Reine Rechtslehre or Pure Theory of Law. Posing the question of how one can sever the concept of the legal norm from its source, the concept of the moral norm, in order thereby to secure the autonomy (Eigengesetzlichkeit) of the law even vis-à-vis morality, he writes:

    "the Pure Theory does this not by understanding the legal norm, like the moral norm, as an imperative – the usual approach of traditional theory – but by understanding the legal norm as a hypothetical judgment that expresses the specific linking of a conditioning material fact with a conditioned consequence. The legal norm becomes the reconstructed legal norm, which exhibits the basic form of positive laws. Just as the law of nature links a certain material fact as cause with another as effect, so the law of normativity links legal condition with legal consequence (the consequence of a so-called unlawful act). If the mode of linking material facts is causality in the one case, it is imputation in the other, and imputation is recognized in the Pure Theory of Law as the particular lawfulness, the autonomy, of the law.
     
    Here the coercive element, not evident on first glance, comes in through the back door.

    Imputation, Kelsen’s juridico-normative category, serves to warrant imputing liability to the legal subject, with “liability” meaning liability to the imposition of a sanction, and with “sanction” now standing in for coercion.26

      In identifying the state with the law, Kelsen combats traditional views of the state, rooted as they are in what he regards as an indefensible metaphysic or ideology.

      Indeed, Kelsen’s monism with primacy of public international law is a response in part to the absence of the state in his legal theory and, therefore, the absence of state sovereignty as a structure existing independently of the law and serving as its foundation.

      The alternative to the state and to state sovereignty is a hierarchy of laws.

      Alfred Verdross, in particular, developed the Stufenbaulehre with an eye to capturing the monism with primacy of public international law.28

    The present focus on Kelsen’s doctrine of the identity of state and law, however, is solely in the context of coercion. Here Kelsen’s simple syllogism will suffice.29 The state, Kelsen writes, is by definition a coercive social system, and since a coercive social system is a legal system, it follows straightaway that the state is a legal system.

    Thus, the coercive element, which serves as the distributed term in Kelsen’s syllogism, is a defining property of the legal system, too. The same will be true, mutatis mutandis, of a decentralized legal system, most obviously public international law, the difference being, of course, that there is no occasion here to speak of a state. But, Kelsen insists, coercion qua defining property is no less evident, for if “so-called international law” is a legal system at all, “then this system of norms, too, must count as a coercive system”.30

    In effect, Kelsen’s later concept of law, reflecting the legal system “from the dynamic point of view”,31 is captured by the Stufenbau itself.

    That is, the dynamic point of view invites attention to a property characteristic of the law, namely, that it regulates its own creation, precisely the property at the heart of the Stufenbaulehre. Just as constitutional norms govern the process of legislation, so legislative norms govern the process of administrative regulation, and so on. As Kelsen writes:

    "The relation between a higher and a lower level of the legal system – as between constitution and statute, or between statute and judicial decision – is a relation of determining or binding …. In governing the creation of the lower-level norm, the higher-level norm determines not only the process whereby the lower-level norm is created, but possibly the content of the norm to be created as well."
    This is not to say – the “formalism” charge of Kelsen’s many critics to the contrary notwithstanding33 – that the process is in any way mechanical. A creative dimension is undeniable, for there is an unavoidable element of discretion involved in the issuance of the lower-level norm. In other words, the determination of lower-level norm by higher-level norm is never complete.

    The higher-level norm cannot be binding with respect to every detail of the act putting it into practice. There must always remain a range of discretion, sometimes wider, sometimes narrower, so that the higher-level norm, in relation to the act applying it (an act of norm creation or of pure implementation), has simply the character of a frame to be filled in by way of the act.34


    The primary emphasis here, however, is not the creative dimension of the process. Rather, the primary emphasis here is empowerment – more precisely, the fact that the norm to which one appeals in order to issue a norm, to make law, is an empowering norm. Kelsen introduces empowerment qua legal norm for the issuance of legal norms only tacitly, that is, as a part of his adoption of Merkl’s Stufenbaulehre. Later, however, in taking up a second species of empowerment, namely, empowerment qua legal norm for the imposition of sanctions, he addresses empowerment on the merits. I return to the point in section 5 below.

    It can be argued argued that Kelsen artfully combines his earlier and later concepts of law, drawing the so-called complete legal norm from Merkl’s mature statement of the Stufenbaulehre. To anticipate Kelsen’s move here, it is well to begin with the overriding concepts, dynamic and static.


    “Dynamic” – the modern expression is traceable to Leibniz35 – conveys the idea of force, motion, or change. Significantly, its etymological precursors include the scholastic “potentia”, that is, the capacity or power to develop.36 Similarly in the law.

    The international lawyer and legal theorist Josef L. Kunz, an important figure in the Vienna School of Legal Theory, writes that a “dynamic theory of international law has to deal with the problem of the creation of international law”.37

    The well-known legal theorist Ota Weinberger, for some purposes a modern-day representative of the Brno School of Legal Theory, defends a dynamic theory of law, treating “dynamic” and “change” as synonyms.38 Merkl writes that without empowering norms, without a means of creating new law, the “legal system would be absolutely rigid and inflexible”.39
    23A change in the legal system, brought about by the creation of law – these are Kelsen’s themes, too. Returning to his statement in General Theory of Law and State,

    "Law is anything that has come about in the way the constitution prescribes for the creation of law…. [For example, an] important stage in the law-creation process [comprises] the procedure[s] by [means of] which general norms are created, that is, the [process] of legislation."
    This dynamic point of view is usefully conceptualized as an ex ante perspective, a focus antedating the issuance of the legal norm and thus emphasizing the process of law creation. The norms depicted from this point of view – most prominently, those that enable legislators to issue general norms, to pass legislation – are empowering norms. In a familiar triad, empowering norms determine who can issue norms, which norms can be issued, and by what means.41

    Kelsen goes on to introduce a complementary static point of view, which can be usefully conceptualized as an ex post perspective. Here the legal norm has already been issued, and the focus is on it, the legal norm proper. Once again the text is General Theory of Law and State :

    "What, from a dynamic point of view, is [a higher-] level norm, in particular, a constitutional [empowering norm that determines] the creation of a general norm[,] becomes in a static presentation of law one of the conditions [of] the general norm…. In a static presentation of law, the higher-[level] norms of the constitution are, as it were, projected as parts into the lower[-level] norms.42
        Or, more accurately, it yields a suitably simplified version of the Stufenbau.
        Whereas the dynamic or ex ante perspective is associated with the Stufenbau itself,43 with its various empowering norms at the various levels manifest in the legal system in question, Kelsen’s static or ex post perspective is aimed at reproducing the Stufenbau in miniature by means of the so-called complete legal norm. The reproduction serves to replicate the levels of the Stufenbau, from the constitution to the hypothetically formulated sanction-norm at the base of the structure – all of this from the standpoint of the particular norm that has been issued. Merkl’s own example of a complete legal norm, drawn from the Austrian legal system, is useful.

        The concrete legal norm – issued and serving as the point of departure for the construction of the complete legal norm in the example – is set in at the base, below, as marked below.

        If an organ, empowered by federal constitutional statute to initiate legislation, has introduced a bill in the National Assembly (Nationalrat) to the effect that the seller of certain wares is to pay a sales tax amounting to a certain percentage of the proceeds from the sale, and further, [b] if the National Assembly, first in committee and then in plenary session, in the procedure specifically prescribed by parliamentary rules of order, has passed a bill to this effect, and further, [c] if this legislation has been submitted to the Federal Assembly (Bundesrat), which either raised no objection within a period of eight weeks or decided before this deadline to raise no objection, and further, [d] if the Federal President has signed this legislation, and the Federal Chancellor as well as the Federal Minister of Finance have countersigned the presidential signature, and further, [e] if the Federal Chancellor has published the signed and countersigned legislation in the Federal Statute Book, and further, [f] if, after the effective date of this legislation, the tax official designated in the statute has prescribed in a certain procedure that a certain person is to pay a certain tax, and finally, [g] if this certain person does not pay the prescribed amount within the prescribed time, then a penalty for the tax offense ought to be imposed on him.
         
        Is Merkl’s “complete legal norm” truly complete, and if it is not, does that matter?

        The query merits a brief discussion. Beginning with the concrete legal norm [g], if its antecedent condition obtains – the individual did not pay the duly prescribed tax – then its consequent may be drawn, to the effect that the individual is liable to the imposition of a penalty. If the individual chooses to challenge the law as applied to him, he might well argue that one or another of the antecedent conditions [a]-[f] was not satisfied and that lack of satisfaction violates, say, due process of law.

        This last notion, drawn from the constitution, is not a part of Merkl’s “complete legal norm”, underscoring its actual incompleteness. Indeed, even if all the constitutional constraints that might possibly apply were added as antecedent conditions, the (ostensibly) complete legal norm would still fall short of completeness. For it is always possible that an unanticipated new reading will emerge from a constitutional challenge based on, say, a new interpretation of a constitutional provision, and such a reading can always become a part of the received opinion. In a very real sense, then, no (ostensibly) complete legal norm is complete for all purposes.
          This approximates the modus operandi in using Hart’s rule of recognition, too.

        This does not, however, undermine Merkl’s model, for in practice the applicable conditions are filled in after the fact.45 The neat distinction drawn by the philosopher of science between the often chaotic “process of discovery” and the tidy “process of justification” applies here, too. Filling in the conditions of a complete legal norm after the fact reflects the spirit of the process of justification.

        This detail respecting completeness aside, how does the so-called complete legal norm serve to bring together the two concepts of law, law creation and coercion?

        The key lies in the distinction between ex ante and ex post perspectives. From the ex ante perspective, the complete legal norm represents the applicable empowering norms, which, if acted upon, will yield the sanction-norm at [g]. From the ex post perspective, the empowering norms are projected into the issued sanction-norm as its conditions or “parts”, as Kelsen sometimes refers to them.46 Thus, the complete legal norm provides a birdseye view of both sides of the ramified concept of law – the ex ante perspective inviting attention to law creation, the ex post perspective focusing on coercion, now embedded in the consequent of the hypothetically formulated sanction-norm. What is more, these two perspectives, ex ante and ex post, capture the two types of empowerment at work in the system, the empowerment to issue norms and the empowerment to impose sanctions.


        To appreciate why the ramified concept of law adumbrated here reflects more accurately Kelsen’s own programme than do his remarks about coercion, it is well to turn to his concern, from the beginning, with the objective law and the “ideal linguistic form” of the legal norm. I set the stage by introducing Kelsen’s polemic against the “system of subjective law”, the antipode to the “system of objective law”.

        It is well known that Kelsen struggled to move beyond various dualisms in the law, in particular that between subjective and objective law. He addresses the issue in a number of his writings. Here is a statement from the First Edition of his Pure Theory of Law :

        When general legal theory claims that its object of enquiry, the law, is given not only in an objective sense but also in a subjective sense, it builds into its very foundation a basic contradiction, that is, the dualism of objective law and subjective right. For general legal theory is thereby claiming that law – as objective law – is norm, a complex of norms, a system, and claiming at the same time that law – as subjective right – is interest or will, something altogether different from objective law and therefore impossible to subsume under any general concept common to both. This contradiction cannot be removed even by claiming a connection between objective law and subjective right, by claiming that the latter is defined as interest that is protected by the former, as will that is recognized or guaranteed by the former. In line with its original function, the dualism of objective law and subjective right expresses the idea that the latter precedes the former logically as well as temporally.47

          The concept of objective law is tolerably clear. “Objective law” refers to the sum total of general, abstractly formulated legal norms in the legal system.48 Underscoring Kelsen’s conception of objective law is his thesis of the identity of state and law, of state and legal system. “Subjective law” and, indeed, the “system of subjective law”, as understood by its nineteenth-century proponents, not least of all Georg Friedrich Puchta and Heinrich Dernburg, antedates the objective law and exists independently of it. Puchta’s commitment to personal liberty, expressed in the Kantian language of “self-determination or autonomy”, is conspicuous here. Dernburg in his treatise explains in a helpful way the import of Puchta’s position :

        Historically speaking, rights in the subjective sense existed for a very long time before a conscious political order developed. They were based on the personality of individuals and on the respect these individuals were able first to win for themselves and their property, and then to enforce. It was only by way of abstraction that contemplation of existing subjective rights gradually led to the concept of the legal system. It is therefore unhistorical and incorrect to view rights in the subjective sense as nothing but emanations of law in the objective sense.49
        •   This may strike one as transparently false.
        • Of course, the proponents of dualism do not grant Kelsen’s point at all.
        Kelsen regards the idea that the subjective law might exist independently of the objective law as well-nigh wrong-headed. Rights and duties are legally valid only if their validity systems from the objective law, from a legal system.

        The “contradiction” to which Kelsen refers in the quoted text stems from granting this point and saying at the same time that the system of subjective law can exist independently of the system of objective law.51 The only way to resolve the contradiction, Kelsen contends, is to eliminate the system of subjective law altogether.
         
        In his treatise of 1911, Main Problems in the Theory of Public Law, Kelsen takes up the question of “the essence of the objective law”, the general, abstractly formulated legal norms in the legal system, by posing a second question, that of the “ideal linguistic form” of such norms. As he writes:

        The question of whether the legal norm is to be understood as an imperative or as a hypothetical judgment is the question of the ideal linguistic form of the legal norm or, indeed, the question of the essence of the objective law. The practical wording used in concrete legal systems is irrelevant to the solution of the problem. The legal norm (in its ideal form) must be constructed from the content of statutes, and the components necessary to this construction are often not present in one and the same statute but must be assembled from several.52
        The essence of the objective law is manifest in the objectified or reconstructed legal norm, that is to say, the legal norm whose formulation is ideal in the required sense. In short, the “essence of the objective law” and the “ideal linguistic form” of the legal norm are intimately related questions.

        Already clear to Kelsen, in Main Problems, is the notion that the legal norm be formulated hypothetically, that it be addressed to the legal official, a move representing, of course, a shift away from the legal subject and the trappings of subjectivity that the concept “legal subject” connotes.


        Kelsen conceives of the “ideal linguistic form” of the legal norm as a central part of his general programme of concept formation, and the programme represents in turn his initial response to naturalism in legal science: Concepts in the law, normative in character as they are, resist the naturalist’s penchant to reduce them to (what the naturalist sees as) their factual counterparts. Of course Kelsen was not the only theorist engaged in concept formation.

        One thinks, for example, of Ernst Zitelmann (1852-1923), who, with an eye to establishing the desideratum of the objective law, had posed, nearly a quarter of a century before Kelsen’s Main Problems, the question of the linguistic form of the legal norm. All objective law, he wrote :
        whatever the time, whatever the place, has one and the same logical form. This form of juridical thought, capable of encompassing the most various of material content, is itself simply form, completely devoid of content.53

        Over a period of some thirty years, Kelsen seeks further properties of the legal norm in its ideal linguistic form, and he defends, beginning in the late 1930s, the idea that the hypothetically formulated sanction-norm, addressed to the legal official, is an empowerment.54 Kelsen elaborates the point in General Theory of Law and State, where he argues for the first time that the legal “ought” is to be seen not as giving expression to the concept of legal obligation but as a place-marker.55 Specifically, in the objectified or reconstructed legal norm, the presence of the legal “ought” marks the possibility that under certain conditions a sanction can be imposed, that is, the legal organ is empowered under certain conditions to impose a sanction. To be sure, it may be the case that a legal official, say A, is obligated to impose a sanction. This is to say, on Kelsen’s analysis, that a higher-level legal official is empowered to impose a sanction on legal official A, should A fail to impose the sanction on the legal subject. Thus, the concept of legal obligation is preserved, but its analysis now turns on a bi-level construction of empowering norms.
        38At this juncture, Kelsen’s construction of the ramified concept of law is essentially complete, for he has now introduced a second type of empowerment, complementing the empowerment he adopted from Merkl. In the newly introduced empowerment to issue sanctions, the coercive element is embedded in a normative structure and no appeal is made to coercion as such. Rather, Kelsen’s appeal is to a certain legal relation – the legal power of the official to impose a sanction, reflected in the legal liability of the legal subject to its imposition.

           See Hart 1961.
        Finally, we want briefly to turn to a thought experiment that draws in a familiar way on John Locke,56 Merkl,57 and H.L.A. Hart.58

        Merkl, like Locke before him and Hart after him, begins at one point in the “Prolegomena” paper with a “primitive system of rules”, manifesting the directive function of law. He then builds in additional structures in order to correct the difficulties inherent in the primitive system. In Kelsen’s hands, as we suggested in the Introduction, the additional structures supplant the original, directive function. Our interest, here, in the thought experiment is less a matter of textual detail, and more a matter of illustrating Kelsen’s move.


        Imagine, then, a primitive rule-system that has but a single level, represented by duty-imposing rules, a system in which the subjects are required simply to comply with these rules. Now we are invited to examine the system’s defects. The most obvious of these is the inability to issue new rules or to abrogate existing rules, for there is by hypothesis no lawmaking (for example, legislative) apparatus at hand. To mend the defect, our interlocutor proceeds to build in a second level, that of empowerment, thereby transforming the primitive rule system into a norm system that is dyadic in structure.

        The next question is whether the dyadic structure is not itself wanting.

        With an eye to facilitating the enquiry, our interlocutor reverts straightaway to the language of legal functions.

        The monadic structure reflects the directive function alone: Rules impose obligations on – and thereby direct – subjects.

        The transformation of the monadic structure into a dyadic structure marks the introduction of a second function, that of lawmaking.

        These two functions, however, do not suffice.

        As the interlocutor argues, even if the dyadic structure with its directive and lawmaking functions is adopted, noncompliance with give rise to problems.

        There is no institutional means to determine noncompliance or, even if noncompliance could be determined, to impose sanctions.

         Our interlocutor responds by introducing a third function, that of law application, which complements the directive and lawmaking functions.

        Once the third function is in place, the result would seem to be a triadic structure, that is, a structural hierarchy built from precisely these three levels. Kelsen, however, takes a different tack, one that is reflected in his ramified concept of law.

        He sees the latter two functions of the triadic structure as together supplanting, in legal science, the original, directive function. The latter functions correspond, in Kelsen’s scheme, to the ex ante and ex post perspectives reflected in the so-called complete legal norm.

        By the same token, the latter functions correspond, in Kelsen’s scheme, to Kelsen’s empowerments to issue norms and to impose sanctions respectively.
        Why would Kelsen say that the latter functions supplant the directive function?

        The answer lies in his commitment to the two-worlds theory.59 The constructions of legal science are found in the second, ideal world, not in the external world of tables and chairs, as the philosophers are fond of putting it. The external world is, however, the home of the directive function, and nothing stemming from Kelsen’s reconstructions changes this fact. On the contrary, Kelsen understands the directive function as a reflection of social phenomenon. As he puts it, the fact that individuals live together is, first of all, a biological phenomenon, and it becomes a social phenomenon by virtue of the directive function.60 Thus, it turns out that the directive function is not a part of legal science. It is found outside of the “cognition of law”, if not its RECOGNITION by rule, alla Hart!
         
                     

        The earlier text is Merkl’s first systematic statement of the Stufenbaulehre, while the latter text represents his most complete statement.
         
        The Stufenbaulehre was first adopted by Kelsen in an essay in 1924.
         
        Kelsen reprinted this statement verbatim in the Allgemeine Staatslehre in 1925.
         
        On the Stufenbaulehre, some note the neglect of Merkl in his Gesammelte Schriften.
         
        The neglect has gone so far that Merkl (1890-1970) has in fact been confused, in some circles, with the Straßburg legal theorist Adolf Merkel (1836-1896), a proponent of the late nineteenth-century Allgemeine Rechtslehre.
         
         Kelsen is decidedly ambivalent on the status of ethics.
         
        On the one hand, he sometimes appears in the guise of a sceptic, and this is certainly the view of him emphasized by most interpreters. On the other hand, he presses his “no-conflicts thesis” – that is, no possible conflict between ethics and the law – in virtually everything he has written on the theory of public international law, of which his defense of monism is an integral part. Monism provides an explanation of sorts, if hardly a justification, of his “no-conflicts thesis”.
         
         
         
        This is Kelsen’s monism.
         
         
         
          Kelsen writes:
         
        "Just as one distinguishes the law from nature, so one is also to distinguish the ideal phenomenon, law, from other ideal phenomena, especially from norms of other types.”
         
        The two-worlds doctrine is given expression, first, in Kelsen (1911)
         
         
         
         
         
          What some term the “cognitive observer” is tacit in Hart’s theory, namely, where he speaks of a “[moderate] external point of view” (the point of view of one who, “without himself accepting [the] rule of recognition, states the fact that others accept it”), Hart (1961: 99).
         
        Hart does not, however, develop the doctrine.
         
        See MacCormick (1981: 36-40), who was perhaps the first to see this point clearly.
         
        MacCormick in fact speaks of a “hermeneutic observer” here.
         
        Some recognize that to develop Kelsen’s “empirical criterion” in this direction tends to undermine his starting point, “the coercive element” in the concept of law, and some offer the remarks in this paragraph of the text as a reflection on Kelsen’s criterion, not as part of a statement of his earlier concept of law.
         
         
         
         The expression, as used here, stems from Bulygin.
         
        The reconstructed legal norm Kelsen understands in the First Edition of Reine Rechtslehre.
         
         
        It is fair to say that no consensus has developed on the import of imputation in Kelsen’s theory.
         
        Still, the concept is now enjoying some attention.
         
         
         
         
        It is perhaps worth noting that Kelsen’s so-called identity does not, qua identity, withstand close scrutiny, for it applies – and, indeed, Kelsen would have it apply – in only one direction.
         
        It does not therefore count, strictly speaking, as an identity at all.
         
        Kelsen identifies the state with the law, to be sure, but there are decentralized species of law that have no counterpart in a state.
         
        A more accurate formulation of Kelsen’s point might run as follows.
         
        What we know as the state is fully to be incorporated into, and restated in terms of, the law.
         
        It is not the case, however, that wherever there is law, there is eo ipso a counterpart state.
         
         
        To be sure, these remarks here barely scratch the surface of an interesting question of juridico-intellectual history.
         
        Why was Kelsen attacked by, among others, virtually all of the Weimer Staatsrechtler on the ground that he was engaged in a wrong-headed enterprise known as “Logizismus”?
         
        Was this simply the wearisome reproach of formalism or was something more interesting going on?
         
         
        This yields a suitably simplified version of the Stufenbau, which would defy description altogether if the demand were to fill it out in all of its complexity.
         
         
        It is this that approximates the "modus operandi" in using Hart’s rule of recognition, too.
         
        In practice, one is not trying to cope with the rule of recognition -- WRIT LARGE, as any philosopher like Hart or Grice would! 
         
        Rather, one resorts to what we may call "working" rules of recognition.
         
         
        Dernburg’s treatise first appeared in 1884.
         
        He was, to be sure, a latecomer to the “Pandektistik”. Windscheid in his later work had already rejected.
         
         
        This may strike one as transparently false.
         
        What of the system of subjective rights that antedates the system of objective law?
         
        Kelsen speaks to the issue, for example, in his debate with Eugen Ehrlich, arguing that the rudiments of a system of objective law are always present if one is claiming that the subjective rights at issue are indeed legally valid.
         
        Of course, the proponents of dualism do not grant Kelsen’s point at all.
         
        They argue that the validity of subjective rights is traceable to a separate source.
         
        Kelsen, however, regards his point as transparently clear, capturing the import of objective law and tracking at the same time the unity of law.
         
        The proponents of dualism are mistaken – or so Kelsen would have us believe.

        REFERENCES

        Martin BOROWSKI,
        Die Lehre vom Stufenbau des Rechts nach Adolf Julius Merkl. Hans Kelsen – Staatsrechtler und Rechtsphilosoph des 20. Jahrhunderts. Eds. Stanley L. Paulson, Michael Stolleis. Tübingen : Mohr-Siebeck.

        Eugenio BULYGIN,
        Zur Problem der Anwendbarkeit der Logik auf das Recht. Festschrift für Ulrich Klug zum 70. Geburtstag. Ed. Günter Kohlmann. Cologne : Peter Deubner.
         
        Heinrich DERNBURG, Pandekten. System des Römischen Rechts. 8. ed. (pt. 1). Berlin : H.W. Müller.

        Horst DREIER, Rechtslehre, Staatssoziologie und Demokratietheorie bei Hans Kelsen. Baden-Baden : Nomos.
         
        Andreas FUNKE, System und Entwicklung der Strukturtheorie des Rechts: Die Allgemeine Rechtslehre der Jahre 1874 bis 1917. PhD thesis. Würzburg : Univ. Würzburg.

        GRICE, H. P. Studies in the Way of Words. (Citing Hart on 'carefully').
         
        Herbert L.A. HART, The Concept of Law. Oxford : Clarendon Press.

        HART on H. P. Grice -- Letter to Morton White ("a marvelous dialectician -- much better than anyone here in Oxford").

        HART -- citing H. P. Grice in "Words and Signs", Philosophical Quarterly.
        Carsten HEIDEMANN, 2005 : Der Begriff der Zurechnung bei Hans Kelsen. Hans Kelsen – Staatsrechtslehrer und Rechtsphilosoph des 20. Jahrhunderts. Eds. Stanley L. Paulson, Michael Stolleis. Tübingen : Mohr-Siebeck.
        Hans KELSEN, 1911 : Hauptprobleme der Staatsrechtslehre. Tübingen : J.C.B. Mohr.
        ——, 1920 : Das Problem der Souveränität. Tübingen : J.C.B. Mohr.
        ——, 1922 : Der soziologische und der juristische Staatsbegriff. Tübingen : J.C.B. Mohr.
        ——, 1924 : Die Lehre von den drei Gewalten oder Funktionen des Staates. Archiv für Rechts- und Wirtschaftsphilosophie 17 (1923–24). 374–408. Reprint in Hans Kelsen, 1925 : Allgemeine Staatslehre. Berlin: Julius Springer.
        ——, 1926 : Les rapports de système. Entre le droit interne et le droit international public. Recueil des Cours 14 (1926).
        ——, 1928 : Das Idee des Naturrechtes. Zeitschrift für öffentliches Recht 7 (1928).
        ——, 1932 : Unrecht und Unrechtsfolge im Völkerrecht. Zeitschrift für öffentliches Recht. 12 (1932). 481–608.
        ——, 1945 : General Theory of Law and State. Cambridge, Mass. : Harvard University Press.
        ——, 1957 : The Law as a Specific Social Technique. University of Chicago Law Review 9 (1941–42). 75–97. Reed. Hans Kelsen : What is Justice? Berkeley, Los Angeles : University of California Press.
        ——, 1960 : Reine Rechtslehre. 2. éd. Vienna : Franz Deuticke.
        ——, 1987 : Recht und Kompetenz. Kritische Bemerkungen zur Völkerrechtstheorie Georges Scelles. Auseinandersetzungen zur Reinen Rechtslehre: Kritische Bemerkungen Zu Georges Scelle Und Michel Virally. Eds. Hans Kelsen, Kurt Ringhofer, Robert Walter. Vienna and New York: Springer.
        ——, 1992 : Introduction to the Problems of Legal Theory. Transl. Bonnie Litschewski Paulson, Stanley L. Paulson. Oxford: Clarendon Press.
        ——, 1998: ‘Foreword’ to the Second Printing of Main Problems in the Theory of Public Law. Normativity and Norms. Critical Perspectives on Kelsenian Themes. Eds. Stanley L. Paulson, Bonnie Litschewski Paulson. Oxford: Clarendon Press.
        Josef L. KUNZ, 1933–34 : The ‘Vienna School’ and International Law. New York University Law Quarterly Review 11 (1933–34). 370–421.
        Gottfried Wilhelm LEIBNIZ, 1904 : Hauptschriften zur Grundlegung der Philosophie. Eds. Artur Buchenau and Ernst Cassirer. Leipzig : Miner.
        John LOCKE, 1690 : Second Treatise on Civil Government.
        Neil MACCORMICK, 1981 : H.L.A. Hart. London : Edward Arnold.
        Adolf Julius MERKL, 1923 : Die Lehre von der Rechtskraft. Leipzig,Vienna : Franz Deuticke.
        ——, 1931 : Prolegomena einer Theorie des rechtlichen Stufenbaues. In: Gesellschaft, Staat und Recht. Untersuchungen zur Reinen Rechtslehre. Ed. Alfred Verdross. Vienna : Springer. Réed. Merkl 1993.
        ——, 1993 : Gesammelte Schriften. Eds. Dorothea Mayer-Maly, Herbert Schambeck, Wolf-Dietrich Grussmann. Berlin : Duncker & Humblot.
        Stanley L. PAULSON, 1992 : Appendix. Introduction to the Problems of Legal Theory. Transl. Bonnie Litschewski Paulson, Stanley L. Paulson. Oxford: Clarendon Press.
        ——, 2001 : Hans Kelsen’s Doctrine of Imputation. Ratio Juris 14 (2001). 47–63.
        ——, 2002a : Faktum/Wert-Distinktion, Zwei-Welten-Lehre und immanenter Sinn. Hans Kelsen als Neukantianer. Neukantianismus und Rechtsphilosophie. Ed. Robert Alexy, Lukas H. Meyer, Stanley L. Paulson, and Gerhard Sprenger. Baden-Baden : Nomos. 223–251.
        ——, 2002b : Neumanns Kelsen. Kritische Theorie der Politik. Frank L. Neumann – eine Bilanz. Eds. Matthias Iser, David Strecker. Baden-Baden : Nomos.
        ——, 2004a : Review of Gesammelte Schriften by Adolf Merkl. Ratio Juris 17 (2004).
        ——, 2004b : Souveränität und der rechtliche Monismus. Eine kritische Skizze einiger Aspekte der frühen Lehre Hans Kelsens. Demokratie und sozialer Rechtsstaat in Europa. Festschrift für Theo Öhlinger zum 65. Geburtstag. Eds. Manfred Stelzer, Alexander Somek, Stefan Hammer, Barbara Weichselbaum. Vienna : WUV-Universitätsverlag.
        ——, 2005 : Hans Kelsen – Staatsrechtler und Rechtsphilosoph des 20. Jahrhunderts. Eds. Stanley L. Paulson, Michael Stolleis. Tübingen : Mohr-Siebeck.
        Joachim RENZIKOWSKI, 2002 : Der Begriff der ‘Zurechnung’ in der Reinen Rechtslehre Hans Kelsens. Neukantianismus und Rechtsphilosophie. Eds. Robert Alexy, Lukas H. Mayer, Stanley L. Paulson, Gerhard Sprenger. Baden-Baden : Nomos. 253–282.
        Joachim RITTER (Ed.), 1972 : Dynamik. Historisches Wörterbuch der Philosophie (2. vol). Basel : Schwabe.
        Alf ROSS, 1968 : Directives and Norms. London : Routledge & Kegen Paul.
        Alfred VERDROSS, 1923 : Die Einheit des rechtlichen Weltbildes auf Grundlage der Völkerrechtsverfassung. Tübingen : J.C.B. Mohr.
        Ota WEINBERGER, 1978 : Die normenlogische Basis der Rechtsdynamik. Gesetzgebungstheorie, Juristische Logik, Zivil- und Prozeßrecht. Gedächtnisschrift für Jürgen Rödig. Eds. Ulrich Klug, Thilo Ramm, Fritz Rittner, Burkhard Schmiedel. Berlin, Heidelberg, New York : Springer.
        Wilhelm WINDELBAND, 1924 : Normen und Naturgesetze. Präludien. (1st ed. Freiburg i.B.: J.C.B. Mohr, 1884, 211–246), 9th ed., 2 vols. Tübingen: J.C.B. Mohr, 1924 (vol. 1, 59–98).
        Ludwig WITTGENSTEIN, 2001 : Philosophical Investigations. Transl. Elizabeth Anscombe. 3. éd. Oxford : Blackwell.
        Wilhelm WUNDT, 1903 : Ethik. Vol. 2 (3. éd.). Stuttgart : Ferdinand Enke.
        Ernst ZITELMANN, 1888 : Die Möglichkeit eines Weltrechts. Allgemeine österreichische Gerichts-Zeitung 39 (N.F. 25). Rééd. in Zitelmann 1916.
        ——, 1916: Die Möglichkeit eines Weltrechts. Munich et Leipzig : Duncker & Humblot.
         
         
         
         
         
         
         
         
         
         
         
         

        Sunday, March 29, 2015

        Epicurean Grice: Πρῶτον μὲν οὖν τὰ ὑποτεταγμένα τοῖς φθόγγοις, ὦ Ἡρόδοτε, δεῖ εἰληφέναι,

        Speranza

        Linguistic botany is a metaphor, no doubt, but one that J. L. Austin favoured, and Grice took  SERIOUSLY.

        The idea is that the philosopher, as  he is engaged in conceptual analysis, has to start with 'the many' and  proceed  to 'the wise', and 'the many' speak 'ordinary language'.

        Thus, J. L. Austin advised we start with 'linguistic botanising'. In Austin and Grice are  following  Epicurus in his letter to Herodotus.

        The letter starts transparently enough:

        "Greetings!", Epicurus writes.

        'Ἐπίκουρος Ἡροδότῳ χαίρειν.

        Πρῶτον μὲν οὖν τὰ ὑποτεταγμένα τοῖς φθόγγοις, ὦ Ἡρόδοτε, δεῖ  εἰληφέναι, ὅπως ἂν τὰ δοξαζόμενα ἢ ζητούμενα ἢ ἀπορούμενα ἔχωμεν εἰς  ταῦτα ἀναγαγόντες ἐπικρίνειν, καὶ μὴ ἄκριτα πάντα ἡμῖν ᾖ εἰς ἄπειρον  ἀποδεικνύουσιν ἢ κενοὺς φθόγγους  ἔχωμεν. ἀνάγκη γὰρ τὸ πρῶτον ἐννόημα καθ' ἕκαστον φθόγγον βλέπεσθαι καὶ μηθὲν ἀποδείξεως προσδεῖσθαι, εἴπερ ἕξομεν τὸ  ζητούμενον
        ἢ ἀπορούμενον καὶ δοξαζόμενον ἐφ' ὃ ἀνάξομεν.

        A loose translation should go:

        "In the first place, Herodotus,"

        "you must understand WHAT IT IS that  words denote, in order that, by reference to this, we may be in a position to test opinions, inquiries, or problems."

        "So that our proofs may not run on untested ad infinitum, nor the terms we use be EMPTY of meaning."

        "For the PRIMARY SIGNIFICATION of EVERY term employed must be clearly seen, and ought to need NO PROVING."

        "This being necessary, if we are to have  something  to which the point at issue or the problem or the opinion before us can be  referred."

        Epicurus goes on:

        "There is another thing, Herodotus, which we must consider carefully."

        "We must not investigate, say, time in an odd way."

        "We must take into account the plain fact itself, in virtue of which WE SPEAK OF TIME as long or short, linking to it in intimate connection this attribute of duration."

        "We SHOULD NOT adopt any FRESH, rather than the simple terms of ordinary language as preferable."

        "We should always employ the usual expressions about stuff."  "And by 'usual' I mean "ordinary"".

         "Nor need we predicate anything else of time, as if this something else contained the same essence as is contained in the proper meaning of the word “time” (for this also is done by some)."

        "For we should not deviate from ordinary language as expressed in ordinary usage."

        "We must chiefly reflect upon that to which we attach this peculiar character of time, and by which we measure it. No further proof is required: we have only to reflect that we attach the attribute of time to days and nights and their parts, and likewise to feelings of pleasure and pain and to neutral states, to states of movement and states of rest, conceiving a peculiar accident of these to be this very characteristic which we express by the word “time.”"




        Epicurus's parents, Neocles and Chaerestrate, were both Athenian-born,  and his father a citizen, had emigrated to the Athenian settlement on the Aegean  island of Samos about ten years before Epicurus's birth in February 341 BC.As a  boy, he studied philosophy for four years under the Platonist teacher  Pamphilus.

        So we can see Epicurus as a member of the Athenian dialectic that Grice  contrasted to the Oxonian dialectic, and let us be reminded that when H. L. A. Hart felt like sending a thank-you note to Morty White in Harvard, and referring  to the forthcoming William James lecturer at Harvard, Grice, Hart
        described  Grice as a 'marvellous dialectician, far better than anyone of us here' -- and  he was writing from Oxford!

        Saturday, March 28, 2015

        H. L. A. Hart on H. P. Grice -- "a marvellous dialectician, far better than anyone here"

        Speranza

        Hart on Grice.

        Grice's class on Aristotle's Ethics, Oxford, Trinity term, 1950 (co-instructor: Hart).



        Speranza

        In Trinity Term 1950 Hart, Austin, Grice and Hare ran a class on the Ethics, and in Hilary Term 1952 Hart lectured on 'Legal and Political Theories in Plato'.

        Hart vs. Grice: Constitutional Implicatures -- eusdem generis, expressio unius -- &c

        Speranza


        Let us compare Hart's and Grice's analysis of legal language in connection with some alleged constitutional implicatures

        The distinction Grice draws between entailment and implicature is exceedingly useful for analyzing the implications of everyday acts of communication like Professor Lessig’s letter to Judge Posner, as well as many other ordinary uses of language ("He dresses very smartly").
         
        But can Grice's distinction be fruitfully applied to legal documents like the Constitution?
         
        Of course it can!
         
        At first glance, there would seem to be grounds for American (never British) scepticism on this score.
         
        As Andrei Marmor has emphasized, Grice’s maxims are norms that apply most naturally in ordinary conversation, where the common aim of the participants is the co-operative exchange of information.
         
        The basic model is a simple, bilateral conversation, where one person asserts a proposition (or perhaps asks a question) which says one thing but also communicates something else.
        .

        (Jerry A. Fodor, Psychological Explanation: An Introduction to the Philosophy of Psychology 153, n. 3 (1968) (“It is difficult to exaggerate the service Grice has performed by reviving and insisting upon what amounts to the distinction between semantic and pragmatic implication”. See Andrei Marmor, The Pragmatics of Legal Language, USC Legal Studies Research Paper No. 08-11, at 19; available on SSRN)




         
         


        Whatever else is true about the Constitution, it does not seem to fit easily into this model of a simple, bilateral, cooperative conversation.
         
        For one thing, the historical evidence suggests that the framers were often engaged in highly strategic behaviour when they selected what language to use in the Constitution.
         
        Far from adhering to norms like “be brief and orderly,” “avoid ambiguity,’” “avoid obscurity of expression” and the like, the framers sometimes were deliberately verbose, ambiguous, or obscure in their choice of language, particularly when it came to controversial issues like slavery.

        In the same vein, they often were less informative and cooperative than they could have been —again, deliberately and self-consciously so.
         
        Likewise, they typically selected the language of particular clauses as result of political compromises.
         
        Finally, some of their most intractable disagreements were settled by what Marmor calls tacitly acknowledged incomplete decisions.
         
        Simply put, they left some issues for another day. And that day is TODAY.

        For all these reasons, one might question whether Grice’s philosophy of language has much to teach us about the Italian Constitution.
         
        Yet, upon further reflection, any conclusion of this nature may be overdrawn.
         
        In many cases, Grice’s maxims appear to yield results that are identical or closely analogous to well-established canons of both statutory and constitutional interpretation, such as ejusdem generis, expressio unius, and the rule against surplusage.
         
        Making explicit the precise norms that underlie these canons can thus be quite illuminating.
         
        Grice’s categories of what a sentence means, what an utterer says, and what a speaker means reflect genuine conceptual differences, moreover, which can be applied to constitutions and other legal texts, in addition to everyday uses of language.
         
        Significantly, the same is true of the distinction between entailment and implicature.
         
         

        George William Van Cleve, A Slaveholders’ Union: Slavery, Politics, and the Constitution in the Early American Republic (2010).





         
         
        The Constitution is shot through with implicatures, rather than entailments.
         
        Carefully distinguishing the one from the other can be useful for many reasons—including getting clear on the fact that what is commonly referred to as the “original meaning” of the Constitution frequently turns on constitutional implicature, rather than "what is explicitly communicated" or “what is entailed” by constitutional provisions.

        To appreciate this last point, consider a historically potent example: the Fugitive Slave Clause of Article IV.
         
        This clause does not say or entail that fugitive slaves must be delivered up to their masters.
         
        Instead, it says:
         
        i. No person held to service or labour
        in one state under the laws thereof, escaping into
        another, shall in consequence of any law
        or regulation therein, be discharged from
        such service or labour; but shall be delivered up,
        on claim of the party to whom such service or labor may be due.
         
        In 1842, a plausible implicature of this clause may have been that it “secured to the citizens of the slaveholding states the complete right and title of ownership in their slaves, as property, in every state of the Union into which they might escape.”
         
        Like all implicatures, however, this inference rests on assumptions that go well beyond the syntax and semantics of the particular expression at issue.
         
        Moreover, the inference is cancelable.
         
        The framers could have added the following language to the clause without contradiction:
         
        “Nevertheless, slavery shall not exist in the United States, or in any place subject to its jurisdiction.”
         
        If so, then the clause would naturally be interpreted to refer only to fugitive servants, of which there were many in 1787.
         
        Daniel Webster, Lysander Spooner, and other northern opponents of the Slave Power made arguments along these lines in 1850, insisting that the constitution itself contains no requirement for the surrender of fugitive slaves."

        U.S. Const. art. IV, sec. 2.

        Prigg v. Pennsylvania, 41 U.S. (16 Pet.) 539, __ (1842) (Story, J.).




         
         

         

         
         

        In Grice’s terms, what they argued, in effect, was that constitutional implicatures involving slavery must be resolved in favour of justice and liberty.

        Many constitutional provisions can be analysed in a similar fashion.
         
        For example, the Eleventh Amendment reads:
         
        ii.

        The judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by citizens of another state, or by citizens or subjects of any foreign state.”
         
        Does this amendment say or entail that federal courts lack jurisdiction to review state criminal convictions?
         
        No, it does not, nor does it imply this, according to the Supreme Court’s decision in Cohens v. Virginia.
         
        In a closely reasoned opinion, Chief Justice Marshall held that a writ of error to review a state criminal conviction was not a “suit in law or equity,” and that even if it were, the precise language of the Eleventh Amendment does not extend to suits “commenced or prosecuted against one of the United States” by one of its own citizens.
         
        “The framers could have, but didn’t” form of argument on which Marshall implicitly relied in Cohens is familiar and commonplace.
         
        In essence, all such arguments turn on the cancelability of Gricean implicature.

        Consider finally the Vesting Clause of Article I, which reads:
         
        iii. All legislative powers herein granted shall be vested in a Congress of the United States.
         
        Does this clause limit Congress to the exercise of its enumerated powers?
         
        With increasing frequency, it seems, many commentators appear to think so.
         

        Lysander Spooner,
        “A Defence for Fugitive Slaves Against the Acts of Congress of February 12, 1793, and September 18, 1850” reprinted in Randy E. Barnett, Constitutional Law: Cases in Context 187 (1st ed. 2008).

        U.S. Const. amend. XI.

        19 U.S. 264 (1821).

        Id. at __. See generally John V. Orth, The Judicial Power of the United States: The Eleventh Amendment in American History 37-40 (1987); G. Edward White, The Marshall Court and Cultural Change, 1815-35, at 504-24 (1988).

        U.S. Const. art. I, sec. 1.




        Thus, one often encounters
         
        claims like the following on popular legal blogs in connection with ongoing disputes over the scope of federal powers:

        iv. Congress only has the powers ‘herein granted'.

        v. The powers of Congress are only those herein granted.

        vi. Per Article I, Section 1, Congress' law-making power is textually limited to the ‘legislative powers herein granted’.”
         
         

        Yet the Vesting Clause does not say—nor does it entail—that Congress has only the powers that are “herein granted” to it in Article I or elsewhere in the Constitution.
         
        Again, this may or may not be a plausible implication of this clause, but, if so, the implication in question is an implicature, not an entailment.
         
        Grice’s test of cancelability is particularly revealing here:



        vii.

        All legislative powers herein granted shall be vested in a Congress of the United States.

        In addition, Congress may exercise any powers it wishes, so long as it thinks they are necessary and proper.

        viii.

        All legislative powers herein granted shall be vested in a Congress of the United States. Congress shall also have whatever other powers are vested in the Swedish Parliament by the Swedish Constitution, now or at any time in the future.

        ix. All legislative powers herein granted shall be vested in a Congress of the United States.

        However, Congress may also prohibit anything it wants, if it violates the natural moral law or (which is the same thing) if the thought of it makes the man on the Clapham omnibus sick.

        Randy Barnett, “Constitutionality and the Real Constitution,” The Volokh Conspiracy, September 22, 2009 (emphasis added).

        Nicholas Rosenkranz, “Treaties Can Create Domestic Law of Their Own Force, But It Does Not Follow That Treaties Can Increase The Legislative Power of Congress,” The Volokh Conspiracy, Jan. 19, 2013 (emphasis added).

        Michael Ramsey, “Curt Bradley on Bond v. United States (and my response),” The Originalism Blog, January 28, 2013 (emphasis added).

        Logically, the fallacy here is to assume

        “All A’s which are B’s are also C’s” entails “All A’s which are C’s are also B’s.”

        From “All legislative powers [which are] herein granted are [also] vested in Congress,” one cannot infer that

        “All legislative powers [which are] vested in Congress are [also] herein granted.”




         
         
        None of these vesting clauses is self-contradictory, and all of them effectively cancel the implication that Congress is “textually limited” to the other powers “herein granted” by the Constitution.
         
        The inference that Congress is limited to these powers is not, therefore, part of the original meaning of the Vesting Clause, if that phrase is taken to extend only to the “sentence meaning” of that clause, or to what the clause says or entails.

         

        With this background in mind, let us return to the problem we highlighted earlier.
         
        What powers are vested by the Constitution in the Government of the United States?
         
        For at least three reasons, it seems reasonable to expect a simple and straightforward answer to this question.
         
        First, it has become a virtual axiom of legal and political philosophy that the United States is “a government of limited and enumerated powers.”
         
        If the powers of government are enumerated, then it ought to be possible to enumerate them.
         
        Second, one of the cornerstones of American federalism, the Tenth Amendment, also seems to require a clear answer to our question.
         
        The Tenth Amendment declares that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
         
        To understand what powers are reserved by this amendment, one first needs to know what powers are delegated.
         
        Third, the Constitution itself refers to “powers vested by this Constitution in the Government of the United States” in another important provision, the Necessary and Proper Clause, which declares that “Congress shall have Power . . . to make all Laws which shall be

        New York v. United States, 505 U.S. 144, 156 (O’Connor, J.)

        “‘Being an instrument of limited and enumerated powers, it follows irresistibly that what is not conferred is withheld, and belongs to the state authorities.’”) (quoting Joseph Story, 3 Commentaries on the Constitution of the United States 752 (1833)). See also, e.g., Steven G. Calabresi, “‘A Government of Limited and Enumerated Powers’: In Defense of United States v. Lopez,” 94 Mich. L. Rev. 752 (1995).

        U.S. Const. amend. X.




         
         
        necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

        To comprehend this language, one needs to grasp the meaning of its constituents – one of which is the very phrase that interests us.
         
        For all of these reasons, then, one might naturally assume that it should be easy to provide a clear and convincing answer to the question with which we began.
         
        What powers are vested by the Constitution in the Government of the United States?

        Here is where the problems begin, and where sensitivity to the lessons Grice taught us reveals that what may look simple on the surface is actually rather complicated.
         
        The question presented is not what powers the Constitution vests in Congress, but what powers it vests in the Government of the United States.
         
        That these are different semantic categories follows from Grice’s maxims, as well as from any number of considerations.
         
        The “stile” or official name of the federal government, which appears on the face of its laws, contracts, and treaties, is “The United States of America.”
         
        Legally speaking, this government is a corporation, an ARTIFICIAL LEGAL PERSON endowed by its creators with various capacities, including the ability to endure in perpetual succession.
         
        By common acknowledgement and established practice, the United States also has the power to sue and be sued; to enter into contracts; to fulfill its treaty obligations; to acquire, sell, hold, and lease property; to operate under a common seal; and a host of other unenumerated powers that are incidental to every corporation, unless they are explicitly denied or

        U.S. CONST. art. I, § 8, cl. 18.

        United States v. Maurice, 26 F. Cas. 1211, (1826) (Marshall, C. J.)

        “The United States is a government, and, consequently, a body politic and corporate, capable of attaining the objects for which it was created, by the means which are necessary for their attainment.

        This great corporation was ordained and established by the American people, and endowed by them with great powers for important purposes.”
         



         

        withheld by its constitution or articles of incorporation.

        By contrast, the Congress of the United States is NOT an independent legal corporation, and it does not possess any of these properties.
         
        Congress is a department of the Government of the United States, and it, too, is vested with certain powers by the Constitution, including, of course, the enumerated powers of Article I, Section 8.
         
        All of these enumerated powers, and indeed every power vested in Congress or the other departments or officers of the United States, are also powers vested by the Constitution in the Government of the United States.
         
        But Congress is not the same thing as the Government of the United States.
         
        Nor, for that matter, are the President and two-thirds of the Senate.
         
        he epigram to Moore’s Principia Ethica comes to mind here, and is directly on point. “Everything is what it is, and not another thing.”




        The Constitution itself requires us to draw a distinction between the powers it vests in Congress or other Departments or Officers of the United States, on the one hand, and the powers it vests in the Government of the United States, on the other.
         
        It does so in particularly noteworthy provision: the Necessary and Proper Clause.
         
        Like the opening words of the Preamble, “We the People,” this clause was added to the Constitution by

        See, e.g., Cotton v. United States, 52 U.S. (11 How.) 229, 231 (Grier, J.) (explaining that “as a corporation or body politic” the United States may bring lawsuits to enforce its contract and property rights).

         Collectively, the President and two-thirds of the Senate have the power to make treaties under the authority of the United States, but they are not thereby the party to these treaties, any more than they—or the President, Congress, or any concatenation of the Departments and Officers of the United States—are the party at interest in debts contracted by the United States, lawsuits against the United States, or property owned by the United States.

        The United States of America is a distinct LEGAL PERSON, with its own rights, duties, powers, and liabilities, which cannot be reduced to those of its departments or officers, or any combination thereof.

        This fact must be kept in mind when interpreting the precise language of the Preamble, Necessary and Proper Clause, Tenth Amendment or other constitutional provisions which refer to the United States.

        G.E. Moore, Principia Ethica ii (1903). The quotation is taken from Joseph Butler.



         

        James Wilson, one of the founding generation’s most sophisticated political theorists, and perhaps its most outspoken champion of implied national powers.
         
        Contrary to a popular misconception, the three most significant words Wilson used in drafting this clause were not “necessary and proper” but “and all other”—a common formula by which “sweeping clauses” perform their essential function of canceling the implication that a list of items is exhaustive.

        As many astute observers recognized at the time, Wilson’s sweeping clause is exceedingly complex, not only because it cancels the inference that Congress’s other Article I powers are exhaustive, but also because it implicitly differentiates no fewer than six distinct sets of powers vested by the Constitution in the Government of the United States, only some elements of which are clearly specified.
         
        Because of this complexity, teasing apart the various powers given and reserved by the Constitution is no easy task—a feature of the document that Wilson and its other leading advocates often exploited during the campaign to ratify the Constitution, and that was not lost on its most perceptive critics.



        Before the adoption of the Constitution, a distinction between the powers vested in Congress and the powers vested in the Government of the United States was not easily drawn.
         
        For all intents and purposes, Congress and the Government of the United States were one and the same, a fact illustrated by the common use of the phrase

        “the United States in Congress assembled”

        in the Articles of Confederation and other American state

        See generally John Mikhail, The Necessary and Proper Clauses, 102 Geo. L. J. 1045, 1106-1128 (2014).

        Wilson’s Necessary and Proper Clause was one of the main reasons why three delegates to the constitutional convention—George Mason and Edmund Randolph of Virginia and Elbridge Gerry of Massachusetts—refused to sign the Constitution.

        Along with the absence of a reserved powers clause, it also was one of the principal reasons why Brutus, An Old Whig, Federal Farmer, and other Antifederalists warned of the uncertain and potentially dangerous powers implicit in the Constitution. Id. at 1050-51.




         
         
        papers.

        Moreover, federal authority did not rest on popular sovereignty, but on an agreement between the states.
         
        In his early drafts of the Constitution for the Committee of Detail, Wilson managed to change all this, making clear

        1) that “the United States of America” was the official name of a "government", not a confederation;

        2) that “Congress” was the name of a department of that government, not the government itself

        3) that the powers vested by the Constitution in Congress and the other Departments and Officers of the United States did not exhaust, but instead were merely a proper subset of, the powers vested by the Constitution in the Government of the United States.
         
        Finally, Wilson clarified that the ultimate source of political sovereignty was the people themselves.

        The records of the Committee of Detail lend support to these conclusions and shed light on the subtleties of Wilson’s thought process.
         
        For example, they indicate that Wilson toyed with different versions of the Preamble, all of which used the transformative language,
         
        “We the People,”
         
        before settling on the following version:

        We the People of the States of New Hampshire, Massachusetts, Rhode-Island and Providence Plantations, Connecticut, New-York, New-Jersey, Pennsylvania, Delaware, Maryland, Virginia, North-Carolina, South-Carolina and Georgia, do ordain declare and establish the following Constitution for the Government of ourselves and our Posterity.

        See, e.g., Articles of Confederation of 1781, art V (“In determining questions in the United States in Congress assembled, each State shall have one vote”); id. at art VI (“nor shall the United States in Congress assembled, or any of them, grant any title of nobility”); id.

        “No state shall engage in any war without the consent of the United States in Congress assembled”). See also, e.g., Declaration of Independence

        “A Declaration by the Representatives of the United States of America in Congress Assembled, July 4, 1776”); id. at para 32 (“We, therefore, the representatives of the United States of America, in general Congress assembled….”).

        See 2 Farrand 150

        “We the People of the States of New Hampshire & C do agree upon, ordain declare and establish the following Frame of Government as the Constitution of ‘the United States of America’ according to which we and our Posterity shall be governed under the Name and Stile of the ‘United States of America’”); id.


        “We the People of the States of New Hampshire & C do ordain declare and establish the following Frame of Govt as the Constitution of the said United States”); id.

        “We the People of the States of New Hampshire & C, already confederated united and known by the Stile of the “United States of America,” do ordain declare and establish the following Frame of Government as the Constitution of the said United States.”).

         




         
         
        Likewise, although he patterned the first two articles of his draft on their counterparts in the Articles of Confederation, Wilson made a pair of significant revisions along the way.

        First, the “United States of America” became the official name of a “government”, not a confederation.

        Second, the powers vested in the United States were now “supreme legislative, executive, and judicial powers”60 rather that only those expressly delegated.

        With respect to the national legislature, Wilson drafted multiple versions of what became the Vesting Clause of Article I,  including one version that used the familiar phrase “U.S. in Congress assembled,” before declaring instead:
         
        “The legislative Power shall be vested in a Congress, to consist of two separate and distinct Bodies of Men, a House of Representatives, and a Senate; each of which shall in all Cases, have a Negative on the other.”

        Turning finally to the Necessary and Proper Clause, Wilson took John Rutledge’s initial draft of that clause, which had given Congress the power “to make all Laws necessary to carry the foregoing Powers into Execution,”  and first revised and expanded it as follows.

         

        “The legislative Power of the United States shall be vested in two Branches a Senate and a House of Representatives; each of which Bodies shall have a Negative on the other”); id.

        “The legislative Power of the United States shall be vested in a general Assembly to consist of two separate and distinct Bodies of Men, the one to be called the House of Representatives, of the People of the United States and the other the Senate of the United States”); id at 152 (“The Supreme legislative Power of the United States shall be vested in a general Assembly to consist of two separate and distinct Bodies of Men, one to be called the House of Representatives, the other to be called the Senate, each of which shall in all Cases have a Negative on the other in all cases not otherwise provided for in this Constitution”); id. (“The legislative Power of the United States shall be vested in a general Assembly to consist of two separate and distinct Bodies of Men, a House of Representatives and a Senate, each of which shall in all Cases have a Negative on the other”).

        The Legislature shall consist of two distinct Branches—a Senate and a House of Delegates, each of which shall have a Negative on the other, and shall be stiled the U.S. in Congress assembled.”

         



         

        and to make all laws that shall be necessary and proper for carrying into full and complete execution the foregoing powers65



        Wilson then added the crucial sweeping clause language (“and all other powers”) to Rutledge’s “foregoing powers’ provision, while taking care to differentiate the “other powers” vested in the Government of the United States from the “other powers” vested in its Departments or Officers:

        and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof;

        Perhaps because he thought it was superfluous, Wilson actually deleted Rutledge’s “foregoing powers” provision altogether, along with the phrase “full and complete.”

        As a result, his draft of the Necessary and Proper Clause looked like this for a time:

        and to make all laws that shall be necessary and proper for carrying into execution all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof;



        Nevertheless, Wilson or another committee member—or perhaps the full committee—later decided to put Rutledge’s “foregoing powers” language back into the Necessary and Proper Clause, while retaining Wilson’s “all other powers” provision.
         
        Consequently, the version of the clause that the Committee of Detail presented to the convention on August 6 included both Rutledge’s “foregoing powers” provision and Wilson’s “all other powers” provision:

        and to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof;68



        Apart from a few minor edits, this language is identical to the final version of the Necessary and Proper Clause that appears in the Constitution.

         




         
         
        When one carefully examines the language of the Necessary and Proper Clause, it seems clear that one of its functions was to give Congress the instrumental power to carry into effect its other enumerated powers, while a second function was to cancel the implication that Congress’s “foregoing” enumerated powers were exhaustive.
         
        The clause Wilson drafted did much more than this, however.

        Just this much could have been achieved by means of a more targeted sweeping clause, which referred only to “all other powers” vested in Congress.

        For example, Wilson could have achieved both of these ends using the following language:



        Alternative #1

        and to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Legislature of the United States.

        Because he understood that Congress would need to carry into effect the powers vested in other parts of the federal government, Wilson also could have drafted a broader “all other powers” provision, which encompassed all of the government’s other departments and officers:

        Alternative #2

        and to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States.

        Finally, if Wilson had wanted to re-inforce the notion that all of the powers delegated to the Government of the United States are assigned to one or more of its departments or officers, he might have omitted the second provision entirely and drafted the full clause in this manner:

        Alternative #3

        and to make all laws that shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in any Department or Officer of the United States.

        Each of these clauses is a genuine alternative to the Necessary and Proper Clause that Wilson could have drafted, but did not.

        Moreover, each has its own unique set of implications, which



        were evidently appealing to various political interests and factions at the time.


        To understand why and to grasp what made critics of the Constitution anxious about the more complex

        69 Alternative #1 is identical in relevant respects to a provision Pierce Butler of South Carolina drafted and may have proposed to the convention in late August, in an apparent effort to curtail the implications of the Necessary and Proper Clause. See Supplement to Max Farrand’s The Records of the Federal Convention of 1787, at 231 (James H. Hutson ed., 1987) (“And to make all Laws, not repugnant to this Constitution that may be necessary for carrying into execution the foregoing powers and such other powers as may be vested by this Constitution in the Legislature of the United States”).




        Alternative #2 is identical to the abridged version of the Necessary and Proper Clause that appeared in the original version of Madison’s Federalist No. 44, which Madison never corrected until thirty years later, when the Gideon edition of The Federalist was published in 1818 after Madison had stepped down from the Presidency and retired from public life. See The Federalist No. 44, at 302 (James Madison) (Jacob E. Cooke ed., 1961)

        (“The sixth and last class [of powers lodged in the general government] consist of the several powers and provisions by which efficacy is given to all the rest. ‘Of these the first is the power to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States.’”); id. at 632 (listing the following edit supplied by Madison in 1818: “Or in any department or officer thereof”). By quoting only two of the three Necessary and Proper Clauses in his original published essay, Madison managed to convey the impression, or at least the potential implication, that all of the constitutional powers vested in the Government of the United States are delegated to one or more of its departments or officers.
         
        Finally, Alternative #3 tracks in relevant respects the precise meaning of the Necessary and Proper Clause that was presupposed, and thus reinforced, by the reserved powers clauses that were offered as constitutional amendments by three of the most “Anti-federalist” state ratifying conventions: Virginia, New York, and North Carolina. See The Complete Bill of Rights: The Drafts, Debates, Sources, and Origins (Neil H. Cogan, ed. 1997), at 675 (Virginia, June 27, 1788) (“That each state in the Union shall respectively retain every power, jurisdiction and right which is not by this Constitution delegated to the Congress of the United States or to the departments of the Foederal Government.”) (emphasis added); id. at 674 (New York, July 26, 1788)

        (“[T]hat every Power, Jurisdiction and right, which is not by the said Constitution clearly delegated to the Congress of the United States, or the departments of the Government thereof, remains to the People of the several States, or to their respective State Governments to whom they may have granted the same”) (emphasis added); id. at 675 (North Carolina, August 1, 1788) (“That each state in the union shall, respectively, retain every power, jurisdiction, and right, which is not by this constitution delegated to the Congress of the United States, or to the departments of the Federal Government.”) (emphasis added).

        More importantly, Alternative #3 also tracks the meaning of the Necessary and Proper Clause that was presupposed, and thus reinforced by, the language of the original Tenth Amendment that Madison proposed to Congress on June 8, 1789. Id. at 662 (Proposal by Madison in House, June 8, 1789)

        (“The powers delegated by this constitution, are appropriated to the departments to which they are respectively distributed….The powers not delegated by this constitution, nor prohibited by it to the states, are reserved to the States respectively”) (emphasis added).

        Because all these proposals encompass only the powers vested in Congress and the other Departments and Officers of the United States, they leave no room for additional national powers implicitly delegated by the Constitution to the Government of the United States. Thus, these amendments would have deprived Wilson and the nationalists of the substantial victory they achieved when the Constitution was adopted.




        Madison’s effort to limit the scope of implied national powers in this manner has apparently been overlooked by historians, who tend to accept at face value his assurances that his amendments were meant to leave the powers of government untouched. See, e.g., Lance Banning, The Sacred Fire of Liberty: James Madison and the Founding of the Federal Republic 285 (1995).

        Madison’s effort was defeated when his prefatory language, stating that all the powers granted by the Constitution “are appropriated to the departments to which they are respectively distributed,” was first revised in such a way as to negate its intended implications, and then was struck altogether.

        Later, Roger Sherman in the House and Oliver Ellsworth in the Senate each inserted the crucial phrase “to the United States” after the word “delegated” in Madison’s original proposal, thereby insuring that whatever implied national powers were vested in the 27
         
        language that Wilson did in fact use, it is important to recognize that the Necessary and Proper Clause is comprised of three distinct provisions, not merely one or two.

        To tease apart their full implications, a useful first step is to distinguish all three provisions and to assign them different names.




        Foregoing Powers Provision
         
        “Congress shall have the Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers”





        Government Powers Provision
          
        “Congress shall have the Power … To make all Laws which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in the Government of the United States”71





        Department or Officer Powers Provision:
          
        “Congress shall have the Power to make ALL LAWS which shall be necessary and proper for carrying into Execution … all other Powers vested by this Constitution in . . . any Department or Officer [of the United States]”

        When read in the context of the other two provisions, the CENTRAL IMPLICATURE of the Government Powers Provision is that the “other powers” vested by the Constitution in the Government of the United States are not merely identical or co-extensive with the powers vested in Congress or other Departments or Officers of the United States.

        Otherwise, the GPP is redundant and violates Grice’s cooperative maxims.

        The conclusion that these “other” powers are not express but implied powers is not an implication of this provision in its own right; instead, it derives from the meaning of that provision, together with the fact that the Constitution does not expressly vest any powers in the Government of the United States as such, as distinct from its various departments or officers. The key language of the GPP that refers to “other powers vested by the




        Government of the United States by the Constitution would be preserved by the Tenth Amendment. See The Complete Bill of Rights, supra at __.
         
        70 U.S. Const. art. I, sec. 8, cl. 18.

         




         
         
        Constitution in the Government of the United States” must, therefore,

        be taken to refer to implied powers.

        The Foregoing Powers Provision adds a great deal of complexity to this picture.
         
        On its face, the FPP affirms the existence of another set of powers—namely, those “which shall be necessary and proper for carrying into execution the foregoing powers” of Article I, Section 8. Like the implied powers of the Government of the United States to which the GPP refers, the content of these instrumental powers given by the FPP is left unspecified.

        The language, structure, and context of its first two provisions thus point to at least two sets of unspecified powers given by the Necessary and Proper Clause.

        The first is the set of implied powers vested by the Constitution in the Government of the United States to which the GPP refers.

        The second is the set of unspecified powers given by the FPP to carry Congress’s “foregoing” enumerated powers into effect.

        Are these two sets of powers coextensive?
         
        Applying Grice’s maxims and the rule against surplusage, the best answer must be they are not.
         
        The powers given by the FPP are vested directly in Congress, and on its face they are clearly meant to be instrumental to the exercise of the other enumerated powers in Article I, Section 8.

        Although the latter are not ends-in-themselves, the powers given by the FPP thus stand to the enumerated powers as means to ends.

        This relationship is asymmetrical.

        Congress may utilize these unspecified powers if and only if it does so in order to carry into effect the enumerated powers, but not the other way around.

        The unspecified powers given by the FPP might appropriately be called “subordinate” powers, therefore, because they are incidental or instrumental to the exercise of the enumerated powers.
         
         
        By contrast, the unspecified
        powers to which the GPP refers are vested in the first instance in the Government of the United States, and they are not necessarily subordinate to the other enumerated powers of Article I, Section 8. Moreover, it seems clear that they cannot be subordinate to these powers, for at least two reasons. First, if these powers were subordinate to the enumerated powers, then they already would be encompassed by the FPP.

        Thus, the GPP would be redundant, and Grice’s maxims would be violated again.

        Second, the language of the third provision of the Necessary and Proper Clause—the Department or Officer Powers Provision—evidently presupposes a background principle, according to which the legislative, executive, and judicial departments of the Government of the United States are components of that government, rather than the other way around.

        If so, then it follows that the two sets of powers given by the Necessary and Proper Clause examined thus far—one, the set of relationally subordinate legislative powers given by the FPP, and the other, the set of relationally super-ordinate government powers presupposed by the GPP—not only cannot be coextensive.

        These sets of powers also must be mutually exclusive.



        All this seems complicated, but in fact, the semantic complexity of the Necessary and Proper Clause is just beginning to unfold.

        The DOPP also refers to a set of instrumental powers; namely, those powers “which shall be necessary and proper for carrying into execution” whatever “other powers” are vested by the Constitution “in any Department or Officer [of the United States].”

        On the most natural and plausible reading of this provision, these “other powers” include all of the executive powers delegated in



        This principle was a resolution given to the Committee of Detail. See 2 Farrand 129

        “Resolved: That the Government of the United States ought to consist of a Supreme Legislative, Judiciary and Executive”).

        The principle was made explicit in the Committee of Detail’s August 6 draft, the second article of which reads:

        “The Government shall consist of supreme legislative, executive, and judicial powers.”




         
         
        Article II, all of the judicial powers delegated in Article III, and—since Congress itself is a “Department” of the U.S. Government—all of the legislative powers delegated outside of Article I, Section 8, such as the power to create inferior tribunals (Article III), the power to dispose of property belonging to the United States (Article IV), and the power to admit new states (also Article IV).

        Likewise, the “other powers” encompassed by the DOPP presumably also encompass all of the shared powers given to more than one departments or officers of the government, such as the Treaty and Appointment powers of Article II, which are jointly delegated to the President and the Senate.

        The instrumental powers to which the DOPP refers gives Congress the authority to carry these other powers into effect by necessary and proper means.

        Finally, the GPP also refers to a set of instrumental powers—namely, those powers “necessary and proper for carrying into execution” the unspecified “other powers” presupposed by that provision.

        Like the instrumental powers assigned by the FPP and DOPP, these instrumental powers are vested directly in Congress and are subordinate to the “other powers vested by this Constitution in the Government of the United States.”

        All told, then, the underlying semantic structure of the Necessary and Proper Clause points to the existence of no fewer than six different powers or sets of powers.

        Four of these sets are vested directly in Congress, three of which are relationally subordinate and introduced by the first sentence of Article I, Section 8.

        The fourth is relationally super-ordinate: namely, the “foregoing” powers presupposed by the FPP.

        The last two sets of powers to which the full Necessary and Proper Clause refers are: (1)



        Does this mean that all of the “other powers” to which the DOPP refers are express powers?

        No, not necessarily; once one recognizes that the “other powers” to which the GPP refers are or at least may be implied powers, then the same could be true of at least some of the “other powers” to which the DOPP refers.




         
         
        the set of “other

        powers” vested in the Government of the United States; and (2) the set of “other powers” vested in any Department or Officer of the United States.
         
        Each of these sets is relationally super-ordinate to the powers given to Congress to carry these “other powers” into effect.

        Once again, these two sets cannot be equivalent, however, unless one of them is redundant.

        In sum, by inserting all of the foregoing properties and qualifications into the text, the entire scheme of powers presupposed by the Necessary and Proper Clause can be given as follows:
         
        Foregoing Powers Provision:
         

        “Congress shall have the [unspecified, instrumental] Power … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing [specified, enumerated] Powers”75





        Government Powers Provision:
          
        “Congress shall have the [unspecified, instrumental] Power to make all LAWS which shall be necessary and proper for carrying into Execution … all other [unspecified, implied] Powers vested by this Constitution in the Government of the United States”





        Department or Officer Powers Provision:
          
        Congress shall have the [unspecified, instrumental] Power to make all LAWS which shall be necessary and proper for carrying into Execution, all other [unspecified, express or implied] Powers vested by this Constitution in any Department or Officer [of the United States]”
         

        Again, the key element of this scheme—the one which probably meant the most to Wilson, Gouverneur Morris, Alexander Hamilton, and the other leading nationalists at the constitutional convention, and which probably caused the greatest concern to Mason, Randolph, and Gerry—is the set of “other powers vested by this Constitution in the Government of the United States,” to which the GPP refers.

        The Constitution never vests power expressly to “the Government of the United States” as a single unified entity,

         




         
         
        although there are clauses which presuppose or imply the existence of such powers

        Yet the GPP clearly refers to such powers and gives Congress the explicit authority to carry them into effect.

        If one assumes that Wilson was an intelligent draftsman and traces the implications of all three Necessary and Proper Clauses, the conclusion to which one is gradually led is that the Constitution vests implied powers in the Government of the United States, which are distinct from all of the express or implied powers delegated to the Departments and Officers of the United States.

        This conclusion, however, hardly leaps off the page.

        On the contrary, the grant of power appears somewhat disguised.



         

        This appears to be what John Marshall had in mind when he offered this curious and telling remark about the Necessary and Proper Clause in McCulloch v. Maryland.

        “The framers of the constitution wished its adoption, and well knew that it would be

        The Constitution arguably vests the Government of the United States with the implied power:

        (1) to sue and be sued -- assumed by Article III, Section 2, which refers to “controversies to which the United States shall be a party” --

        (2) to acquire and own real estate and other property -- assumed by Article IV, Section 2, which gives Congress the authority “to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States”);

        (3) to enter into contracts and incur debts (assumed by Article IV, Section 1, which refers to “Debts contracted and Engagements entered into…[by] the United States,” as well as by Article I, Section 8, which authorizes Congress “[t]o borrow Money on the credit of the United States” and “[t]o provide for the Punishment of counterfeiting the Securities and current Coin of the United States”); and

        (4) to enter into treaties with other nations (assumed by Article III, Section 2, which extends the judicial power of the United States “to all cases . . . arising under . . . Treaties made, or which shall be made, under [the] Authority {of the United States]” and by Article VI, Section 2—the Supremacy Clause—which also refers to “Treaties made, or which shall be made, under the Authority of the United States”). Furthermore, the Republican Guarantee Clause of Article IV, Section 4 vests an obligation in the United States to

         “guarantee to every State in this Union a Republican Form of Government, and protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

        If “ought” implies “can,” then this clause also would seem to vest the United States with the implied power to: (5) guarantee each State a Republican Form of Government; (6) protect each State against Invasion; and (7) protect each State against domestic Violence under the specified circumstances. Cf. Gary Lawson, Geoffry P. Miller, Robert G. Natelson, and Guy I. Seidman, The Origins of the Necessary and Proper Clause 1 (2010)

        “The Constitution never grants power to the ‘national government’ or the ‘federal government’ as an undifferentiated entity, but instead grants various aspects of governmental power to discrete actors”); Gary Lawson, “Delegation and the Constitution,” 22 Regulation 23 (“The Constitution nowhere grants power to ‘the federal government’ as a unitary entity.”).




         
         
        endangered by its strength, not by its weakness.
         
        Had they been capable of using language which would convey to the eye one idea, and, after deep reflection, impress upon the mind another, they would rather have disguised the grant of power, than its limitation.”

        The grant of authority at issue also supplies a plausible explanation of many other curious historical observations.

        To elaborate on these topics is beyond the scope of this essay.

        Instead, we wish to conclude by returning to the progressive theory of LAW which rests on an implied power to promote the general welfare.
         
        How exactly is the core argument of that theory supposed to go?
         
        In its most compressed and simplified form, we suggest it consists of the following steps:

        ---------------

        STEP 1. The Necessary and Proper Clause implies that the Constitution vests powers in the Government of the United States that are not coextensive with the powers it vests in its Departments or Officers.

        2. The United States of America is a LEGAL corporation.

        3. A corporation is vested with the implied power to fulfill its purposes.

        4. The purposes of the United States include promoting the general welfare.

        5. The Constitution vests the Government of the United States with the implied power to promote the general welfare (from 1, 2, 3, and 4)

        6. The Necessary and Proper Clause gives Congress the authority to make all LAWS which are necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States.

        7. The Constitution authorizes Congress to carry into effect the implied power of the United States to promote the general welfare (from 5 and 6).

        This reasoning may strike some readers as new and outlandish, but in fact it is not new, nor does it seem particularly outlandish.

        In essence, it is the same basic argument that Mason, Randolph, and Gerry perceived at the close of the constitutional convention;81

        79 McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, __ (1819)

        80 See, e.g., Mikhail, supra note 54, at 1129-30.

        81 See Hutson, Supplement to Farrand’s Records 249 (August 30: Objections to the Constitution, attributed to George Mason) (“The sweeping clause absorbs every thing almost by construction”); id. at 251 (August 31:

        Alterations to the Constitution, proposed by Mason) (

        “The Objects of the National Government to be expressly defined, instead of indefinite powers, under an arbitrary constructions of General Clauses”); 2 Farrand 563-64 (September 10: statement of Edmund Randolph) (objecting to

        “the general clause concerning necessary and proper laws” and “the want of a more definite boundary between the General and State Legislatures”); id. at 631 (September 15: statement of Randolph) (criticizing the “indefinite and 34

        that “Federal Farmer,” “Brutus,” and other Antifederalists warned against during ratification;82 that Franklin drew upon when he called on Congress to abolish slavery; that Hamilton and his supporters used to defend the first Bank of the United States; that Marshall outlined in McCulloch and other landmark opinions;8 that Frederick Douglass drew upon when he called on Congress to abolish slavery; and that Theodore Roosevelt




        dangerous power given by the Constitution to Congress”); id. at 633 (September 15: statement of Elbridge Gerry) (objecting to

        “the general power of the legislature to make what LAWS they may please to call necessary and proper”); id. at 635 (September 15: Mr. Gerry’s objections) (“The Legislature allowed to make any laws they please”); id. (September 15: Gerry’s Objections) (highlighting

        “the power in the last clause to make any laws pursu[ant] to [the] Con[stitution] to carry the same into Effect”).
         
        Brutus, No. 5, 13 December 1787, New York Journal, in BERNARD BAILYN, 1 THE DEBATE ON THE CONSTITUTION 499, 500 (1993) (linking the Necessary and Proper Clause with the ends of the Preamble and observing:

        “The great objects then are declared in this preamble in general and indefinite terms to be to provide for the common defence, promote the general welfare, and express power being vested in the legislature to make all LAWS which shall be necessary and proper for carrying into execution all the powers vested in the general government.

        The inference is natural that the LEGISLATURE will have an authority to make all LAWS which they shall judge necessary to the common safety, and to promote the general welfare.”

        83 See supra note 13.

        84 See, e.g., 14 DOCUMENTARY HISTORY OF THE FIRST FEDERAL CONGRESS, MARCH 4, 1789—MARCH 3, 1791 (Linda Grant Depauw et al, eds.) 390, 393 (1972) (Statement of Rep. Ames) (explaining that

        “that construction [of the Necessary and Proper Clause] may be maintained to be a safe one which promotes the good of the society, and the ends for which the government was adopted, without impairing the rights of any man, or the powers of any state”); 4 Elliot’s Debates 418 (Statement of Rep. Laurence)

        “The principles of government, and ends of the Constitution, he remarked, were expressed in its preamble. It is established for the common defence and general welfare.

        The body of that instrument contained provisions best adapted to the intention of those principles and the attainment of those ends. To these ends, principles, and provisions, Congress was to have, he conceived, a constant eye: and then, by the sweeping clause, they were vested with powers to carry the ends into execution”).

        See generally Joseph M. Lynch, Negotiating the Constitution: The Earliest Debates over Original Intent 83-92 (1999).

        McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 421 (1819) (Marshall, C.J.) -- construing the Necessary and Proper clause to embrace

        “all [legislative] means which are appropriate” to carry out “the legitimate ends” of the Constitution); see also, e.g., Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, __ (1821) (Marshall, C.J.

        “To this supreme government ample powers are confided; and if it were possible to doubt the great purposes for which they were so confided, the people of the United States have declared that they are given ‘in order to form a more perfect union, establish justice, ensure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to themselves and their posterity."

        Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, __ (1824) (Marshall, C.J.)

        “If, from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule, that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction."

        "We know of no rule for construing the extent of such powers, other than is given by the language of the instrument which confers them, taken in connection with the purposes for which they were conferred.”

        Frederick Douglass, The Constitution of the United States: Is it Pro-Slavery or Anti-Slavery? Speech Delivered in Glasgow, Scotland, March 26, 1860, reprinted in Barnett.

        “It has been said that Negroes are not included within the benefits sought under the Preamble. This is said by the slaveholders in America. But it is not said by the Constitution itself. Its language is “we the people;” not we the high, we the low, but we the people; we the human inhabitants; and, if Negroes are people, they are included in the benefits for which the Constitution was established."

        "If there is once a will in the people of America to abolish slavery, there is no word, no syllable in the Constitution to forbid that result.”

        and Franklin D. Roosevelt announced in 1906 and 1937, respectively.
         
        Perhaps most significantly, it is also the same basic argument that James Madison employed in 1789 to justify the need for a bill of rights.

        Is the argument’s conclusion valid, and can each premise along the way be given a reasonable justification?

        Without pretending to settle these questions conclusively, let me conclude by saying a brief word about each step of the argument, leaving a more extensive discussion for another occasion.

        The first premise is a restatement of the main thesis of Section 6.
         
        The implication to which it refers may seem like an entailment, but in fact it seems more accurately classified as an implicature.
         
        The framers could, in principle, have added a rider to the Necessary and Proper Clause that states:

        “However, there are no powers vested by this Constitution in the Government of the United States that are not delegated to one or more of its Departments or Officers.”
         
        This statement does not generate a contradiction.
         
        Instead, it merely implies that a particular definite description in the Constitution picks out a null set.

        The language would be a roundabout and uncooperative piece of draftsmanship, but it does not quite amount to affirming P and not-P.




         
         
         

        1 ANNALS OF CONG. 455 (June 8, 1789) (statement of Rep. Madison) (explaining that

        “because in the constitution of the United States there is a clause granting to Congress the power to MAKE all LAWS which shall be necessary and proper for carrying into execution all the powers vested in the government of the United States, or in any department or officer thereof,”

        the federal government possesses

        “certain extraordinary powers” which “enables it to fulfill every purpose for which the government was established”).

        One possibility worth considering is that the implication in Step 1 is a presupposition.

        Grice held “that any alleged presupposition is either an entailment or an implicature, and hence the notion of presupposition, to the extent it was ever coherent, can be dispensed with altogether.”

        Not all philosophers would agree, however, and most probably conceive presupposition as a genuine third category at the borderline of semantics and pragmatics.

        See, e.g., Gennaro Chierchia and Sally McConnell-Ginet, Meaning and Grammar: An Introduction to Semantics __ (1999).

        Some distinguish two classes of presupposition: semantic presupposition and pragmatic presupposition.

        A standard definition holds that a sentence, S, semantically presupposes a proposition, P, if P must be true in order for S to have a truth-value; and that the use of a sentence, S, in a




         
         
        The second premise, that the United States is "a legal corporation", appears to have been embraced by an unbroken string of authorities.

        The same is true of the third premise, which in many respects is the core principle of the argument.

        The remaining steps are relatively simple and straightforward.

        The fourth step is a direct inference from the Preamble.

        The fifth step follows from the first four premises.

        The sixth step is merely a paraphrase of the Government Powers Provision of the Necessary and Proper Clause.

        Finally, the seventh step follows directly from steps five and six.



        As indicated, the third premise is in many respects the heart of the argument.

        Here, there are at least two mutually reinforcing points worth emphasizing by way of conclusion.

        First, it seems noteworthy that many of the sharpest legal minds in the founding generation—Wilson, Hamilton, Marshall, and others—repeatedly explained that
        particular context, C, pragmatically presupposes a proposition, P, if P is a member of a set of background assumptions that is taken for granted by the speaker in C. Id. at __.

        Accordingly, there are at least two possible ways that a presupposition relation might exist between the Necessary and Proper Clause and the implication at issue in Step 1.

        First, the latter could be a semantic presupposition of former, that is, a proposition that must be assumed to be true if the clause itself is capable of being either true or false.

        Second, the implication could be a pragmatic presupposition of the Necessary and Proper Clause, that is, a background assumption taken for granted by the framers (or ratifiers) when the clause was written (or adopted.)
         
        Cotton v. United States. Chisholm v. Georgia, 2 U.S. (2 Dall.) 419, 446 (Iredell, J..

        “The word ‘corporations,’ in its largest sense, has a more extensive meaning than people generally are aware of."

        "Any body politic (sole or aggregate), whether its power be restricted or transcendent, is in this sense, ‘a corporation.’.
        "In this extensive sense, not only each state singly, but even the United States may, without impropriety, be termed ‘corporations’”.

        Respublica v. Cornelius Sweers, 1 U.S. (1 Dall.) 41, 44 (1779)

        “From the moment of their association, the United States necessarily became a body corporate.

        "For, there was no other superior from whom that character could otherwise be derived."

        "In England, the queen and the Parliament -- lords, and commons -- are certainly a body corporate" (cfr. Hart's rule of recognition: "What the queen in parliament enacts is law."

        "And yet there never was any charter or statute, by which they were expressly so created.”

        Collected Works of James Wilson.

        “The next accusation I shall consider is that which represents the federal constitution, as not only calculated, but designedly framed, to reduce the state governments to mere corporations and eventually to annihilate them."

        "Those who have employed the term "corporation" upon this occasion are not perhaps aware of its extent."

        "In common parlance, indeed, "corporation" is generally applied to petty associations for the ease and convenience of a few individuals."

        "But in its enlarged "sense", it will comprehend the government of Pennsylvania, the existing union of the States, and even this projected system is nothing more than a formal act of incorporation."

        “When a corporation is duly established, there are many powers, rights, and capacities, which are annexed to it tacitly and of course."

        "The general duties of every corporation may be collected from the nature and design of its institution."

        "It should act agreeably to its nature, and fulfill the purposes for which it was formed.”




         
         the Constitution was a corporate charter, framed to ensure that the United States was vested with the power to fulfill its purposes.

        Second, James Madison is often called “the father of the constitution,” but this label is in many respects more myth than reality.

        In fact, Madison had less to do with the precise language of the constitution than is commonly believed.

        The best reading of the available evidence suggests that the two principal draftsmen of the Constitution were James Wilson and Gouvernuer Morris.

        Both were lawyers who conceived of the United States of America as a legal corporation, who were strongly committed to vesting the government of the United States with implied national powers, and who clearly understood how the objects clause and sweeping clause of a corporate charter could work in tandem to vest the corporation with the implied power to fulfill its purposes.

        Wilson was largely responsible for drafting the necessary and proper clause, and both men were responsible for the preamble.

        Thre must be a Griceian moral there, somewhere.