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ABSTRACT
The aim of this paper is to show that general jurisprudence is in no need of reinvention. The sentiment shared by many contemporary legal philosophers that theories about the nature of law have reached a dead end is challenged here by showing that the debates about the ontology of law and about the determinants of legal contents leave many interesting questions open for serious debate. The paper argues that traditional legal positivism is best seen as a theory about the ontological grounding of legal facts, and that a reductive account of this grounding can be provided with a more sophisticated account of the artefact nature of law, aided by some ideas derived from fictionalism. The paper also acknowledges that such a reductive ontology of law faces serious challenges, particularly from the view point of theories about determinants of legal contents. By explaining these challenges and pointing out how they may be met, the paper aims to show that some the age old debates about the nature or law are very much alive and worthy of serious philosophical inquiry.
Acknowledgements
I am grateful to the participants of the legal theory workshop at Surrey University and the reviewers of the journal for helpful comments on earlier drafts.
Notes
1 David Enoch, ‘Is General Jurisprudence Interesting?’ in David Plunkett, Scott J Shapiro and Kevin Toh (eds), Dimensions of Normativity: New Essays in Metaethics and Jurisprudence (OUP forthcoming).
2 My views on the normativity of law I expressed recently in Andrei Marmor, ‘Norms, Reasons, and the Law’ in Kenneth Einar Himma, Miodrag Jovanović and Bojan Spaić (eds), Unpacking Normativity: Conceptual, Normative, and Descriptive Issues (Hart Publishing 2018).
3 I will refer to this type of question as one of ‘ontological grounding’. Most of the literature tends to draw a distinction between metaphysical grounding and ontological dependence. The former covers a lot of ground, much more than I have in mind here, and dependence means different things in different contexts. What I have in mind here is metaphysical grounding in terms of ontological building blocks. See eg Karen Bennett ‘Construction Area: No Hardhat Required’ (2011) 145 Philosophical Studies 79. For some clarification of these complex ideas and uses of terminology, see Gideon Rosen, ‘Metaphysical Dependence: Grounding and Reduction’ in Bob Hale and Aviv Hoffman (eds), Modality: Metaphysics, Logic, and Epistemology (OUP 2010).
4 Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (OUP 2009) ch 1. I am not saying that I agree with Raz on this point.
5 John Austin, The Province of Jurisprudence Determined (first published in 1832, revised edn, Wilfrid Rumble ed, CUP 1995). Bentham had views about these issues, but I don’t think that the ontological question was the focus of his legal theory. See Gerald J Postema, Bentham and the Common Law Tradition (OUP 1986).
6 For example, I think that it would be difficult to deny that a commitment to Capitalism forms part of US law.
7 Austin had also sought to provide a reductive explanation of law’s normative aspects. In that respect, his project is widely regarded as a spectacular failure. But the truth is that there are some reductive ambitions in Hart’s account of law’s normativity as well, though clearly the latter is much more sophisticated. This is not an issue I will take up here at all.
8 HLA Hart, The Concept of Law (2d edn, OUP 1994) chs 2–5.
9 Andrei Marmor, Philosophy of Law (Princeton University Press 2011) chs 1–3.
10 See eg Mark Greenberg, ‘The Moral Impact Theory of Law’ (2014) 123 Yale Law Journal 1118; Scott Hershovitz, ‘The End of Jurisprudence’ (2015) 124 Yale Law Journal 1161; Mark Greenberg, ‘The Moral Impact Theory, the Dependence View and Natural Law’ in George Duke and Robert P George (eds), The Cambridge Companion to Natural Law Jurisprudence (CUP 2017); Enoch (n 1). See also, to a lesser extent, Jeremy Waldron, ‘Jurisprudence for Hedgehogs’ (2013) NYU School of Law, Public Law Research Paper No. 13–45 <https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2290309> accessed 1 November 2018.
11 I share the exasperation of colleagues, like John Gardner, having to remind us that traditional legal positivism is not a view about what judges, or anybody else for that matter, ought to do. It is just an ontological theory about the grounding of legality. See eg John Gardner, ‘Legal Positivism: 5 and ½ Myths’ (2001) 46 American Journal of Jurisprudence 199.
12 I am not denying that both Austin and Hart may have expressed various views that give some credence to the critics’ interpretation. As Waldron often reminds us (see eg Jeremy Waldron, ‘Normative (or Ethical) Positivism’ in Jules L Coleman (ed), Hart’s Postscript: Essays on the Postscript to ‘The Concept of Law’ (OUP 2001)), Hart clearly expressed the view that coming to see law’s distinctive grounding in social facts and its independence from morality is morally good, enabling us to have a more sober and detached view of the laws we are subject to. Whether Hart is right or wrong about this is rather tangential to the theoretical framework I discuss here.
13 As I explained elsewhere in detail, Dworkin’s early critique of Hart, in Taking Rights Seriously, is a direct argument against the possibility of a complete reduction of legal validity to social facts. His later work, in Law’s Empire, takes the critique one step further, aiming to show that reduction fails across the board since law’s ontology and content are always a function of interpretative reasoning. See Ronald Dworkin, Taking Rights Seriously (Duckworth 1977); Ronald Dworkin, Law’s Empire (Harvard University Press 1986); Marmor (n 9) ch 4.
14 Brian Leiter (‘Legal Positivism about the Artifact Law: A Retrospective Assessment’ in Luka Burazin, Kenneth Einar Himma and Corrado Roversi (eds), Law as an Artifact (OUP 2018)) makes a great deal of the fact that law is an artefact, but he tells us very little about the kind of artefact law is. Furthermore, some of Leiter’s views about the nature of artefacts I find questionable. I certainly do not share his view that artefacts cannot have essential features. Of course they can. It is an essential feature of fiction, for example, that it involves imaginative cognition, inviting the readers to suspend their beliefs about the truths of its assertions. And it is an essential feature of chairs that they are objects we use to sit on. Essential features are not necessary features. Of course there are chairs one cannot sit on, deviant cases are always possible, and unproblematic as long as we understand the deviation, as such.
15 Sometimes the distinction between the tangible and the intangible is a difficult one to draw. Cinema, and some of the performing arts, like theatre, opera, dance, etc, convey contents in ways that are very similar to ordinary fiction, but they also have a tangible aspect that fiction lacks, they require some spacio-temporal performance or instantiation.
16 A nice example is the incorporation of traditional African masks to the Western art world in the early decades of the twentieth century. African masks were not originally created as works of art, at least not as the concept of art has been understood in the West. But once influential artists in Europe started to regard African masks artistically, and started exhibiting them as such, they have become works of art, that is, regardless of the actual intentions and purposes of those who created them. Things like this happen not infrequently. (I am aware of the fact that I hereby contradict something I wrote many years ago, about this particular example, embarrassingly. See Andrei Marmor, Interpretation and Legal Theory (revised edn, 2nd edn, Hart Publishing 2005) 82–83.)
17 Andrei Marmor, Social Conventions: From Language to Law (Princeton University Press 2009) 59–61.
18 Assuming, of course, that there is nothing else said or implicated in the story that might contradict it. All this is much more complicated, of course, and I have dealt with some of these complications in Andrei Marmor, ‘Law as Authoritative Fiction’ (2018) 37 Law and Philosophy 473.
19 See Andrei Marmor, The Language of Law (OUP 2014) ch 1.
20 On the distinction between different performative speech acts and the nature of institutional performatives I have elaborated in my Social Conventions (n 17) 118–30.
21 Marmor (n 18).
22 I’m talking about types, not tokens here. One can always err about features of a particular token of a type.
23 Ontological mistakes in the other direction seem to be much rarer. It is difficult to think of an example where natural kinds are mistakenly thought to be artieacts. (Perhaps some realists about mathematics may attribute such a mistake to their opponents. I am not sure.)
24 We may come to discover things about ourselves, that is, the human mind and psychology etc., by learning more about our cultural creations, but that is something else entirely. Then we are talking about natural objects, not artefacts.
25 See Marmor (n 17) 5–6.
26 Dworkin seems to share this view, that law’s coercive aspect is unique, but unique in the way in which it ties law to justification of coercion on the basis of past political decisions. See Dworkin, Law’s Empire (n 13).
27 See Marmor (n 18).
28 Some people seem to think that the uniqueness desideratum can be met by expressing law’s coercive aspect in terms of enforceability in courts: norms are legal, on this view, if they are the kind of norms that are enforceable in a court of law. There are two problems with this view. First, it is circular: We need laws, many laws, to establish courts, as the kind of institutions they are, and their respective powers of enforcement. One cannot ground legality on factors that depend on a legal framework. Second, the view is not even accurate as a matter of legal facts, since there are some legal norms which are not enforceable in courts. But the first point is more important.
29 See Marmor (n 17) ch 6.
30 A sculpture originally created in 1969 by Robert Smithson.
31 See eg Jeremy Waldron, ‘Arguing about the Normativity of Jurisprudence: Comments on Andrei Marmor’s Philosophy of Law’ (2014) 19 Jerusalem Review of Legal Studies 81.
32 See eg Stanley Fish, ‘Working in the Chain Gang: Interpretation in the Law and Literary Criticism’ in WJ Thomas Mitchell (ed), The Politics of Interpretation (University of Chicago Press 1983); Dworkin, Law’s Empire (n 13). See also Nicos Stavropoulos, ‘Obligations, Interpretivism, and the Legal Point of View’ in Andrei Marmor (ed), The Routledge Companion to Philosophy of Law (Routledge 2012).
33 See eg Marmor (n 16).
34 See eg Mark Greenberg, ‘Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication’ in Andrei Marmor and Scott Soames (eds), Philosophical Foundations of Language in the Law (OUP 2011).
35 I defended all this in much greater detail in Marmor (n 19) ch 1.
36 The idea of a closed prefixed context and many of the missing details here I explained in Marmor (n 18).
37 On the limits of assertability in fiction there is considerable literature. For a good summary of the various views and further references, see Nils-Hennes Stear, ‘Imaginative and Fictionality Failure: A Normative Approach’ (2015) 15 Philosopher’s Imprint 1.
38 Statutory provisions are often formulated in descriptive terms, such as ‘it is a felony to ϕ in context C’; but these formulations are clearly prescriptive in their asserted content, saying that one should not ϕ in C because it would count as a felony, viz, something one ought to avoid.
39 Lon L Fuller, The Morality of Law (Yale University Press 1969).
40 As Fuller himself recognised, for example, in his rather subtle discussion of retroactivity. ibid 49–62.
41 See eg David Estlund, ‘Utopophobia’ (2014) 42 Philosophy and Public Affairs 113.
42 Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism (OUP 2010).
43 Joseph Raz, ‘Authority, Law and Morality’ (1985) 68 The Monist 295.
44 ibid. The idea that only human beings, or rational agents, can make claims on our reasons for action might strike some moral philosophers as questionable. After all, we often speak about morality (or justice or fairness) making claims on our reasons for action. But this is not a serious worry. When we talk about morality or justice or decency and things like that, ‘making a claim on our reasons for action’, we are not necessarily in the business of personifying morality. It’s only a mode of expression, equivalent to saying that there are moral reasons to do this or that, or that there reasons of justice, fairness or decency that apply to us. No personification is required to make sense of such locutions. But when we say that the law, distinct from particular legal authorities, makes various claims on us, it is very difficult to see how to make sense of it without assuming a rather questionable personification of law.
45 I agree with John Gardner (‘How Law Claims, What Law Claims’ in Matthias Klatt (ed), Institutionalized Reason: The Jurisprudence of Robert Alexy (OUP 2012)) that there is a considerable difference between ascribing to the law a claim to the moral legitimacy of its authority, which is what Raz claims, and law’s alleged claim to moral correctness, which is the view Alexy maintains. The latter is much less plausible and easily refuted by counter-examples. I am somewhat less optimistic than Gardner, however, about the possibility of avoiding the personification problem. Generally speaking, however, there’s not much in Gardner’s article that I disagree with.
46 Greenberg, ‘The Moral Impact Theory’ (n 10).
47 Hershovitz (n 10).
48 Greenberg, ‘The Moral Impact Theory’ (n 10) 1323.
49 A point recognised, but not fully developed by Greenberg; he does allude to ‘actions of legal institutions’ and ‘legally proper way’, without acknowledging, however, that if we can work out what legal institutions are and what are ‘legally proper’ ways, we would also have to work out what legal, as opposed to moral, contents of laws are. This critique has been raised by Larry Alexander in ‘Was Dworkin an Originalist?’ in Wil Waluchow and Stefan Sciaraffa (eds), The Legacy of Ronald Dworkin (OUP 2016) 312–16.