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Abstract
The content of legal obligations is expressed inside an opaque context established by terms that express obligation. As a consequence, two expressions of legal obligation that contain terms referring to the same object are not always derivable logically from one another. Adjudication can be treated as an attempt to decide which of two competing expressions (each presented by one side of the argument) most persuasively matches the content of the underlying legal obligation. This implicates the logical issue just mentioned and drives adjudicators and counsel to search for links that most persuasively justify the conclusion that there is a match. Approaches to resolving this problem are mentioned and criticized. The incompleteness of meaning (vagueness) and the choice (both positive and negative) that norms represent further aggravate the difficulty of justifying obligatoriness. Ways of studying this phenomenon neutrally and teaching it in law school are discussed.
DISCLOSURE STATEMENT
No potential conflict of interest was reported by the author.
Notes
1. The following discussion has many similarities in purpose and content with other efforts, including, for example, Paul Brest's article “The Misconceived Quest for the Original Understanding,” which appeared in Boston University Law Review 60 (1980): 204–38. The following discussion differs from articles such as Brest's in its effort to both more precisely identify underlying causes for many of the issues discussed by Brest and others and to suggest some ways to further study those causes and to slightly refocus the teaching of law in order to better take them into account. The underlying causes appear to both compel hermeneutic activity and define the space within which it occurs.
2. These phenomena, also referred to as “quantifying in” or as the de dicto/de re distinction, are particularly interesting in the law because legal argument often vacillates between the application of legal strictures to specific facts (as discussed here) and reasoning about legal concepts in the abstract, without reference to specific persons or situations. In the later (de dicto) case, the issues discussed here do not arise (see, e.g., W. Kneale, “Modality de Dicto and de Re,” in Logic, Methodology and Philosophy, ed. E. Nagel, P. Suppes, and A. Tarski [Stanford: Stanford University Press, 1962], 622–33, for an early discussion), nor do they in similar cases when modal logic is used to model relationships between legal concepts without reference to specific persons or situations.
3. It is important to note that such a series of explanations and elaborations typically occurs only when a legal stricture is being applied, as opposed to when it is being adopted, because it is only in the context of specific factual situations that a serious need to engage in explaining and elaborating will arise. Although a legislator might engage in such an effort, it seems less likely, since the legislator's focus will be on generality. The role of a law professor seems to fall somewhere in between – especially in civil law countries.
4. The term “obligation-marker” is used to indicate the point in an argument about the proper application of terms in a legal stricture (that is, terms in an opaque context involving an indication of obligation) at which references to ordinary word meaning and clear implications of statutory structure no longer suffice and the argument terminates with a reference to a factor that purports to be persuasive all by itself, such as an alleged analogy to some type of ordinary human behavior that is seen as clearly constituting an obligation. I prefer the term “obligation-marker” at this stage of the analysis for several reasons. It seems more non-committal as to the nature of any ultimate description, unlike the term “trump card,” for example, which implies that whatever device is being used is always effective, as opposed to being – as I think more likely – context sensitive. It also hints at a lack of motivation. The situation under discussion also resembles that discussed in Wittgenstein's On Certainty/Über Gewißheit, ed. D. Paul and G.E.M. Anscombe (Oxford: Blackwell, 1969) § 612, where he states that persuasion is called for when reasons run out and refers to religious conversion. The behavior of legal reasoning in an opaque context of obligation seems more regular and routine than does conversion, because it relies on degrees or shades of relationship to circumstances that seem clearly obligatory. I suspect, in fact, that something similar happens in conversions as well, given the way various religions have often adapted themselves to the pre-existing beliefs or practices of previous non-believers as the religions have spread. The way obligation-markers work in practice should be a matter of study, as discussed below.
5. I believe that it is generally at this level of analysis that articles such as Brest's tend to commence. Certain other very general aspects of the manner in which legal strictures are interpreted or applied may derive from the way in which (at least in the US) constitutional, statutory, and contractual strictures appear to be treated as if they were embedded in a structure of roughly the following sort: We agree [performatively] [on your/our behalf] that [CONTENT OF STRICTURE]. It is from this basic structure (or the ideas behind it) that discussions of legislative intent and the intent of the contractual parties most often take their start. I would argue that a careful consideration of this structure can clarify aspects of that discussion.
6. For a discussion of the argument and various proposals about what it shows and what, if anything, can or should be done about it, see T. Parent, “Rule Following and Metaontology,” The Journal of Philosophy (May 2015): 247.
7. Or of applying the law.
8. The ways in which a theory based on construction might respond to various critiques of originalism are discussed frequently in the Legal Theory Blog hosted by Lawrence B. Solum, at http://lsolum.typepad.com/legaltheory/.
9. Using religious, moral, or ethical notions as obligation-markers raises other issues that are difficult to summarize but will be mentioned again briefly below. Keep in mind, however, that the obligation-markers under discussion are those that are needed to establish the obligatoriness of a particular legal stricture as applied to specific facts. Using such notions to establish obligatoriness at the end of an effort to develop effective elaborations of a legal stricture may or may not have the same, potentially even more controversial effect as applying such notions throughout the entire legal system (i.e., basing the structure and effect of an entire legal system on such notions).
10. For a thorough discussion of some ideas that seem to be similar in a number of respects to this approach, see Christoph Möllers, Die Möglichkeit der Normen (Berlin: Suhrkamp Verlag, 2015).
11. The appearance of schools of legal thought in different jurisdictions and cultural contexts suggests that general styles do, in fact, develop.
12. As opposed to, for example, the application of a principle or rule conceived of as moral or ethical.
13. This could be thought of as an attempt to understand the metrics of a possible worlds analysis that utilizes notions of closeness to a certain fixed point in describing the relationships between a world taken as existing and others taken as possible. See Angelika Kratzer, Modals and Conditionals: New and Revised Perspectives (Oxford: Oxford University Press, 2012).
14. Among the books that contain some interesting material related to these subjects, see Anthony G. Amsterdam and Jerome Bruner, Minding the Law (Cambridge, MA: Harvard University Press, 2000), and the various works published by members of the Exzellenz-Cluster Normative Orders (Die Herausbildung normativer Ordnungen), Goethe-Universität, including, most recently, Rainer Forst, Normativität und Macht (Berlin: Suhrkamp Verlag, 2015).
15. For example, it can be interesting to consider the kinds of ultimately persuasive considerations involved in understanding “John ought to worship the Morning Star” and “John knows that the Morning Star is the Evening Star” and compare them with those associated with the sentences used earlier as examples of obligatoriness.
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George M. Williams
George Williams received his PhD in Linguistics from MIT. After teaching linguistics for several years and writing about law and linguistics, he obtained his JD from SUNY Buffalo Law School. He focuses on financial regulation and systemic risk.