Legal thinking is a practice, of lawyers. It constrains their actions as professional or academic lawyers. To work, law must be a practice of those that share jurisdiction, lawyers and non-lawyers included. In my presentation I will discuss the consequences of thinking legal practice as a practice of both citizens and lawyers, exploring the different obligations and demands of each, taking into account that lawyers are also citizens.

A concept of practice

I will not move into an extensive discussion of what ’practice could mean’, or an extensive discussion of concepts like praxis not used in this presentation (e.g. Baumann’s or Bourdieu’s or Habermas’, though it could be interesting to check the relationship with Marx’ and with Arendt’s concept of praxis). However, with regard to this seminar, and having worked in the environment of Isabelle Stengers during the past five years I like to start with a brief exploration of the concept of practice that Stengers develops in Cosmopolitiques (C.), to be followed by a discussion of the concept of practice I developed on the basis of my doctorate thesis in legal philosophy.

Reading C. I understand that a practice is constituted by the interactions between things that build a shared world. Things being both humans and non-humans. These interactions are constituted by constraints that determine which actions make sense (have significance, are effective) and these constitutive constraints are either obligations between practitioners or demands adressed to certain phenomena.

[These obligations can be understood as habits, reiterated ways of doing things. Cp Winch on rules and habits, not to be confused with custom (as Geertz rightly points out) or simple regularities (as Wittgenstein has demonstrated). What about the demands, how can they be described?]

In the case of experimental science the demands are directed towards the phenomena that are being investigated, which need to be purified in a specific way to allow them to prove right or wrong one or more interpretations of their appearance (thus constructing scientific facts). The obligations are directed towards, or rather are in force between, the scientists, who need to make the difference between an interpretation that fits the outcome of the experiment and those interpretations that do not fit the outcome (:86-87 Tome I). This includes the obligation to invent experiments that make a difference (Popper’s falsification, Peirce’s fallibilism).

The concept of a practice is meant to be a generic concept, fitting different practices. Also, demands and obligations should explicitly not be understood in terms of rights and duties (:89, Tome I), which can be seen as two types of institutions holding together a society of equivalent citizens. Demands and obligations, however, hold together a heterogeneous collectif of competent specialists, devices, arguments and issues (:89, Tome I).

In the case of law, speaking of a legal practice, I would say that legal constraints in this sense hold together a heterogeneous collectif of academic and practising lawyers, cases, statutes, doctrine, treaties, files, verdicts, software programs of the public prosecutor, transcriptions of court procedures, particular dresses (like the toga), the architecture of the court room, of the prison, etc.
 Demands may be understood in terms of the needs of a society for legal certainty, public safety, justice and fairness.
 Obligations may be understood in terms of the way lawyers feel obliged to make a difference between what is lawfull and what is not lawfull in a particular case. To count as a lawyer I must be able to answer the question: what is a lawfull action here. If I cannot answer that question I may be a moral philosopher, an activist, a politician, a civil servant or a citizen, but not a lawyer.

In this sense, legal thinking is a practice of academic lawyers and of legal practicioners, while law itself is partly the product of this practice. It seems inapt to speak of a legal practice of citizens along these lines, because in modern society we have delegated the decision of what is lawfull and what is not lawfull to competent practitioners [in oral traditions this monopoly is not evident, it cannot be taken for granted].

How to understand the legal practice of citizens?

This being said, I think that the relationship between law and citizens differs from the relationship between science and citizens, and I think this difference demands recognition for the constitutive role of citizens’ interactions for what counts as law. There is a legal practice of citizens that is co-constitutive of law while it is not equivalent to the scientific practice of what Alan Irwin calls scientific citizens for what counts as science.

To explain this difference and to explain how we can sensibly think of law as a practice of non-lawyers I will use the concepts of norm and action. This way I hope to clarify how legal norms are constituted by the practice of non-lawyers. This may result in a different use of the term practice and I am interested in exploring to what extent the two concepts of practice can unveil different aspects of the relationship between law, lawyers and citizens.

Norms and legal norms
A norm is something that constrains our (inter)actions by inducing (or even enforcing) some types of actions and inhibiting (or even ruling out) others. Such constraints are constitutive of our freedom to act, because to act we need to have some idea how others will react to our behaviour. These constraints allow us to anticipate what others expect from us, whether or not we act in accordance with such expectations. Without norms to guide our actions we would land in a chaos, becoming incapable of effective action. So, before acquiring a moral dimension, norms have an epistemological dimension in the sense that they allow us to tune our interactions and to make sense of life. In other words: norms and actions are mutually constitutive (Peter Winch, Paul Ricoeur, Charles Taylor, G.H. Mead, Glastra van Loon; but also, if we extent the scope of relevant others to include non-humans, like machines, Latour, Ihde, Verbeek).

If this is a generic conceptions of norms it should be clear that norms develop between humans (and non-humans) in a horizontal way; norms regulate the interactions between people (and things) by allowing anticipation and reiterative mutual tuning. They are in fact like habits, ways of doing things that have been automated. Their normative appeal comes from under the skin and is only reflected upon when something goes wrong, for instance when expectations are not met or when following different rules that apply for different reasons turn out incompatible in a specific situation.

What about legal norms that have been enacted by a legislator, for instance new administrative rules. These rules do not (yet) regulate the interactions between citizens. They seem to regulate the interactions between the government and the citizens to which the rules apply. Often citizens do not follow these rules because they anticipate that others expect this, but exclusively because the government has enacted these rules. They do not feel obliged towards their fellow citizens, but obliged by the government. Such newly enacted legal norms thus start their life in the vertical relationship between a government and its citizens. As a result of the fact that we do not feel obliged towards our fellows, we may in fact only follow such rules if we are monitored and sanctioned in the case of non-compliance. As soon as the government stops checking on us we may forget the rule or simply decide against following it. This makes administrative law either expensive (in as far as we need to be monitored and sanctioned) or ineffective (in as far as we stop complying when we are not being monitored). This deficit of administrative law dissappears only when the new rule develops into a rule that regulates the horizontal relationships between citizens, i.e. when citizens feel obliged towards each other.

In the history of law and legal theory, especially criminal law, a distinction has been made between two types of rules: rules that regulate actions that are inherently bad (mala in se) and rules that regulate actions that have been stipulated as bad by the government (mala prohibita). This seems to compare to our findings that some rules regulate actions between citizens at a horizontal level, while other rules regulate actions of citizens from above.

This distinction, however, does not do justice to the complexity of legal norms in a constitutional democracy (CD). In a CD seems more apt to discriminate between two aspects of legal norms: an imperative aspect that regards the relationship between a government and its citizens (vertical aspect) and a normative aspect that regards the relationship between citizens (horizontal aspect). In a society ruled by positive law, every legal norm has an imperative aspect and, to be effective as well as legitimate, every legal norm in a CD has a normative aspect or strives to develop a normative aspect. Instead of discriminating two types of norms, we must now distinguish three types of norms:
1. those that have only a normative aspect,
2. those that have only an imperative aspect and
3. those that have a normative and an imperative aspect.

1. As to the first type of norms: In our legal tradition law depends on the state, so norms that lack an imperative aspect (lack the authority of the state) are not (yet) legal norms. In non-state jurisdictions (cp. Glenn’s description of chthonic traditions and De Sousa Santos’ description of lex mercatoria) the difference between legal and other types of rules is less obviously related to the state.
2. As to the second type of norms: The advance of the welfare state has greatly expanded the second type of norms: newly enacted norms that do not yet regulate interactions between citizens, and are complied with only when we expect to be monitored and sanctioned. These norms raise a host of problems in the domain of implementation, compliance and law-abidance. In the end they might erode the effectiveness and also the legitimacy of the entire legal system, because in a constitutional democracy every legal norm should aim to legitimately regulate the actions between citizens. Citizens should feel obliged towards each other, not just by the government.
3. As to the third type of norms: This last type of legal norms is the paradigm case for a sustainable legal order that is both effective and legitimate. They demonstrate law as a practice of citizens that feel obliged towards each other, while this obligation is supported by government authority. To reach such a state of affairs it is important that these obligations can be contested in a court of law and in the political process. This contestation may concern the meaning of the norm (in the pragmatic sense of which actions fall within its scope) and its validity (in the pragmatic sense of incompatibility with other applicable legal or moral norms).

Practising law: Buying bread and paying your taxes
The term ’practising law’ is usually reserved for ’what lawyers do’ (in particular attorneys, but also judges and public prosecutors) when they decide or advice about what is lawfull. The analysis of legal norms demonstrates that an adequate understanding of law pays attention to the way citizens practice law when they buy bread (taking the bread after paying the money), declare their income to the tax authorities (fraudulantly or in compliance with the relevant legal rules), build a house with or without a stipulated permit, exceed the speed limit, use illicit drugs, prescribe expensive drugs while others are available, commit euthanasia within or without the scope of the law, jump in front of a train to end one’s life, etc. In effect this means that any human action may have a legal dimension, potentially having legal consequence. This is not a matter of turning everything into law – quite on the contrary – it demands a keen eye for the moment at which actions turn into legal facts. Evidently this relational conception of law is not compatible with formal or sociological legal positivism, which try to reduce law to a system of legal rules or a set of behavioural regularities.

We must admit that citizens practise law in a different sense than lawyers do. They do, however, ultimately make law. Not taking this into account easily produces the traditional dichotomy between lawyers that study law as a system of legal norms (formal legal positivism, Kelsen) and sociologists of law that study the way it functions in everyday practise (sociological legal positivism). This dichotomy is not interesting because it opposes a na?ve ought to a na?ve is, while law works on the treshold between ought and is. It regulates our legitimate expectations, allowing adequate anticipation, providing the freedom to act (even if this is the freedom to act in breach of the law). If law is not practised by citizens it looses its substance, becoming a complex puzzle for devoted professionals instead of a way to ’imagine the real’ (Clifford Geertz).

The crucial nexus of law as a practice of lawyers and of citizens
Law only works, only has substance, meaning, can only regulate society and protect citizens (can only be effective and legitimate) if it establishes constraints that oblige citizens towards their fellow citizens. In a CD law must therefore be a practice of citizens, if anything. At the same time, we have delegated the decision on what is lawful to the lawyers. This implies that the practices of lawyers and citizens, however different, must connect in a way that facilitates law as a legitimate and effective practice of citizens.

Questions raised

The practice of lawyers has been defined in terms of obligations and demands, not to be confused with duties and rights.
The practice of citizens has been defined in terms of legal norms that are understood as constraints that oblige citizens (in two distinct ways: vertically they are obliged by the government, horizontally they are obliged between themselves).

How do these two types of practice relate?
 Does the horizontal, normative aspect of (legal) norms, compare to the obligations between practitioners?
 In a CD, should we understand the obligations between legal practitioners as (unwritten) legal norms or as non-legal norms?
 Which demands are relevant in the case of the practice of lawyers (justice, legal certainty, purposiveness – Radbruch; which should be taken as generic concepts that must can only demand if particularised in specific cases in a specific context)?
 Which demands address citizens in their practice of law?

 Is the need to facilitate a legitimate and effective practice of law by citizens a demand addressing legal phenomena like a contract, a case, a tort, a punishment, etc. And/or is this one of their obligations?