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Kenneth M. Ehrenberg http://orcid.org/0000-0001-6875-8385

Notes

1 I have tried to use the word ‘merely’ in conjunction with ‘contextual reason’ to suggest that the reason in question is only operative within the context of the institution being discussed. In the case of law, a merely contextual reason would be a reason supposedly created by the law or actions of legal officials, without regard to whether this reason is robustly normative in the sense of being one to which addressees should pay any attention. See The Functions of Law (Oxford University Press 2016) 4, 162 (also calling this a ‘practice-based norm’).

2 Of course it might still ‘trigger’ robustly normative reasons when it is not acting as a legitimate authority. For example, it might trigger a prudential reason to act so as to avoid sanction. See ibid 149.

3 The term ‘non-legal facts’ could be misleading. They might better be called ‘pre-legal facts’ in that they are the facts that will ultimately be relevant to determining the law, before they have any legal status. I worry, however, that calling them ‘pre-legal facts’ could be misleading in other ways (suggesting, perhaps, that the laws they ground, determine, ‘rationally determine’, or lead to are necessarily valid). Notwithstanding these imperfections, I will refer to them as ‘non-legal facts’ when I wish to emphasize the fact that they don't have any legal content, and as ‘pre-legal facts’ when I wish to emphasize that they are the specific subset of non-legal facts that are potentially relevant for determining legal content or the truth of legal propositions. Greenberg calls them ‘law practices’ (or, more precisely, ‘law-determining practices’) in order to limit them to non-legal facts that are relevant for the law. Mark Greenberg, ‘How Facts Make Law’ (2004) 10 Legal Theory 157, 167. But in addition to having the same qualms (here magnified by omitting the qualification that they are ‘pre-legal’) about that term as I do about ‘pre-legal facts’, I also worry that it bundles in too much metaphysical baggage to limit them to ‘practices’. His reason for using ‘practices’ is to exclude any ‘facts about value’, having noted that his use of ‘practices’ is itself non-standard, ibid 162 (including constitutions, statutes, and judicial decisions among ‘law practices’, while admitting it is ‘unidiomatic’ to do so). But, as I’ve discussed more recently in ‘Law Is an Institution, an Artifact, and a Practice’ in Luka Burazin, Kenneth Einar Himma and Corrado Roversi (eds), Law as an Artifact (Oxford University Press 2018) 182, ‘social practices are normative at their core’ (following Raimo Tuomela, The Philosophy of Social Practices: A Collective Acceptance View (Cambridge University Press 2002) 78). So it is not clear how even this non-standard use of ‘practices’ is supposed to remind us to exclude facts about value. Another wrinkle is Greenberg's inclusion of constitutions, statutes, and judicial decisions among the law practices. While he makes it clear that what he means by including these elements is the facts that a given person or group of officials voted for or promulgated a given text (Greenberg, 163), describing these facts or events using their institutional identity (‘statute’, ‘constitution’, etc) is highly misleading. The fact that a given set of events constitutes an adopted statute is itself already a legal fact since it is a truth about the legal status of those events, and hence itself already bears some legal content.

4 Greenberg (n 3) 163–64. Remember that the non-legal facts for him are still ‘law practices’.

5 ibid 165.

6 ibid 166.

7 ibid 172.

8 ibid 177.

9 ‘[W]e might find that there are restrictions on what kind of reasons law practices [i.e. non-legal facts that are legally relevant] must provide. For example, it might turn out that legal systems have functions and that in order for a legal system to perform its functions properly, the reasons provided by law practices must provide reasons for action’. ibid 166 n 20.

10 ibid 190.

11 ibid 190.

12 ibid 189–90.

13 Greenberg himself makes these points clear ibid 191, 192–97.

14 It is important to emphasize this independence. While the artefact's membership in a given kind is tied to its proper function, the norm in question here is of the recognition of that membership and not dependent upon the audience actually using the artefact to perform that function. For a concise explanation of this see my paper ‘Law Is an Institution, an Artifact, and a Practice’ (n 3) 185–87.

15 This is not even a pro tanto reason, it is just some reason.

16 Sebastian Baldinger, ‘Why Law Is Law’ (2019) 10(2) Jurisprudence (this issue) 227.

17 I must admit that I’m not entirely comfortable thinking of dispositions as properties that public artefacts may have for their audiences. But we need not go into that here.

18 See e.g. ‘Law Is an Institution, an Artifact, and a Practice’ (n 3) 185–86.

19 ibid 187 n 27; The Functions of Law (n 1) 48 n 128, 51 n 135.

20 The Functions of Law (n 1) 24, citing Peter Achinstein, The Nature of Explanation (Oxford University Press 1983) 272.

21 The Functions of Law (n 1) 21, citing Karen Neander, ‘The Teleological Notion of “Function”’ (1991) 69 Australasian Journal of Philosophy 454, 454.

22 The Functions of Law (n 1) 21, citing Ruth Garrett Millikan, Language, Thought, and Other Biological Categories : New Foundations for Realism (MIT Press 1984) 2.

23 The Functions of Law (n 1) 24, emphasis added.

24 ibid 24, citing John R Searle, ‘Social Ontology and the Philosophy of Society’ in Eric Margolis and Stephen Laurence (eds.), Creations of the Mind: Theories of Artifacts and Their Representation (Oxford University Press 2007) 12; Making the Social World: The Structure of Human Civilization (Oxford University Press 2010) 94–96; Beth Preston, ‘Philosophical Theories of Artifact Function’ in Anthonie Meijers (ed), Philosophy of Technology and Engineering Sciences (Elsevier 2009) 215–16.

25 Burazin does note this later in the paper. Luka Burazin, ‘Legal Systems, Intentionality, and a Functional Explanation of Law’ (2019) 10(2) Jurisprudence (this issue) 233.

26 ibid 229.

27 As mentioned above, some of these may themselves be non-legal facts, and other non-legal facts could also be truth-makers.

28 The Functions of Law (n 1) 34.

29 ibid 24, citing Dick W. P. Ruiter, ‘Structuring Legal Institutions’ (1998) 17 Law & Philosophy 215, 217.

30 The Functions of Law (n 1) 35–36, 105, citing Searle, Making the Social World (n 24) 53. See also my paper ‘The Institutionality of Legal Validity’ ([online first 2018]) Philosophy and Phenomenological Research, 4–8.

31 The Functions of Law (n 1) 35–36.

32 John R. Searle, The Construction of Social Reality (Free Press 1995) 87–88.

33 Burazin (n 25) 231 n 4.

34 ibid.

35 Burazin suggests instead that formal institutionality would attach to what Raz calls ‘momentary legal systems’, ibid, citing Joseph Raz, The Concept of a Legal System: An Introduction to the Theory of Legal System (2nd edn, Clarendon Press 1980) 34–35. I prefer to think of them as one-off formal institutions rather than to focus on each moment, which might lead us to miss their substantial identity over time.

36 There is some hint of this in The Functions of Law (n 1) 16–17. When I think of legal systems generally, I am thinking of them as the sets of laws valid within a given jurisdiction. When I think of them specifically, I might refer to ‘the law of the United States’, which clearly has rules of membership in that set.

37 E.g. ibid 17, 37.

38 Assuming legal systems are themselves artefacts, allowing them to be created by imputed intention, may cause problems with my reliance upon Amie Thomasson's understanding of what she calls ‘essentially artifactual kinds’, in which the maker must have an intention to make an artefact of that kind, with ‘a substantive concept of the nature’ of those artefacts. Ibid 134, quoting Amie L. Thomasson, ‘Public Artifacts, Intentions and Norms’ in Maarten Franssen and others (eds), Artefact Kinds: Ontology and the Human-Made World (Springer 2013) 48–49. One way out of this would be to say that legal systems are not essentially artefactual kinds (even if they are systemic collections whose members are always essentially artefactual kinds). In correspondence Thomasson agreed that this would likely be the preferred response. She cited a village as an example of an artefact that is not a member of an essentially artefactual kind since some are likely created as by-products of people purposely building their houses near other houses, without necessarily having a concept of a village in mind when doing so. However, this would appear to open up the possibility that some legal systems are not fully-fledged artefacts in some way – perhaps exactly those legal systems that are not self-consciously created. Perhaps it is sufficient that the maker has a ‘substantive concept of the nature’ of the artefact being created where the by-product artefact also depends substantially on that more basic artefact, somehow borrowing from or sharing its nature.

39 ‘The Institutionality of Legal Validity’ (n 30).

40 ibid 14.

41 ibid 21.

42 Letter from Thomas Jefferson to James Madison (6 September 1789), The Papers of Thomas Jefferson (Princeton University Press 1958) vol 15, 392–98.

43 The Functions of Law (n 1) 17.

44 But see above n 38, discussing problems with allowing for imputed intentions to create artefacts.

45 The Functions of Law (n 1) 134–35 n 39.

46 Burazin (n 25) 230.

47 ibid 231.

48 The Functions of Law (n 1) 122–23. This focus on the need for response to violations of customary laws should not be interpreted to place me in the camp of those who think that sanction (or, at least expressed disapproval) is conceptually central to law. While there is likely some historical dependence of the notion of laws (or rules more generally) upon sanction (and hence their particular relevance for customary versions of these), as we move into notions of law as more formally institutionalised, the focus shifts from sanctions to validity until the former are no longer conceptually necessary.

49 The communication need not be verbal or linguistic. I can imagine it being effected by elbow nudging and eye-rolling.

50 Burazin (n 25) 232.

51 I recognise that the worries mentioned above in n 38, complicate this argument as well. But those doubts would go more to questioning what kind of artefact we would imagine legal systems to be, before leading us to say that the conscious recognition of systematicity is necessary for the move from customary rule to customary law.

52 ibid 233.

53 Again, somewhat problematically as noted in n 38.

54 ibid 234.

55 In the hopes of partial redemption, I note that I did consider in multiple places the two alternatives of aggregating the individual functions, maintaining their diversity, or generalising over them when possible. Very likely there would have to be some combination of these two options. So an ultimate characterisation of the functions of law would be a combination of generalisations and more specific uses. I also consider the possibility that the generalisations will not be possible or useful themselves and that maintaining the unwieldy diverse set will be necessary. See The Functions of Law (n 1) 44, 46–50, 50–51 (discussing some problems with aggregation), 130–31 (following Green, ‘Law as a Means’ in Peter Cane (ed), The Hart-Fuller Debate in the Twenty-First Century (Hart 2010) 184 in comparing law to a Swiss Army Knife), 138, 187–88 (borrowing from Joseph Raz, ‘On the Functions of Law’ in A W B Simpson (ed), Oxford Essays in Jurisprudence (Second Series) (Clarendon Press, Oxford 1973)).

56 See The Functions of Law (n 1) 13.

57 572 US ___, 134 S Ct 2077 (2014).

58 While the Supreme Court in this case determined that the prosecution was invalid (i.e., that the use function must track the design function for this particular usage of the law), they could have of course decided the other way.

59 In support and further explanation of this, consider that the artificial statuses institutions create (possibly by simply defining a term in an officially adopted rule) are placeholders for the functions they are supposed to perform. This is why institutions defining themselves are not engaging in vicious circularity. See ‘The Institutionality of Legal Validity’ (n 30) 6 n 24, citing Searle, Construction of Social Reality (n 32) 88–89.

60 The Functions of Law (n 1) 21, citing Neander (n 21) 454.

61 The Functions of Law (n 1) 43–44 (arguing against seeing law as a functional kind).

62 Jonathan Crowe, ‘Functions, Validity and the Strong Natural Law Thesis’ (2019) 10(2) Jurisprudence (this issue) 237, 239.

63 ibid.

64 How does law provide deontic markers? Via its institutional operation to create and assign statuses. In whom does it create a sense of social obligation? In those to whom the law is institutionally addressed, both addressees of primary legal obligations and officials as addressees of institutional powers and responsibilities. How wide does that sense of social obligation reach? Generally, no wider than the law reaches. One common criticism of law as a means of instilling a sense of social responsibility is that it comes to be seen as a substitute for moral obligation, providing the minimum duties that community members must meet. It thereby leads them to discount or neglect other duties on which the law is silent. We might say the law institutionally sets the contextual boundaries for the sense of social obligation it instils. Even if we hope it can do more and think of it as one way of establishing a wider sense of social obligation, it's hard to imagine its primary social function to be instilling a wider social obligation than one regarding the relatively narrow set of behaviours it addresses.

65 ibid 240.

66 The Functions of Law (n 1) 32, 44 n 122, 45, 46, 61–63 (discussing precisely the distinction between membership, non-defectiveness, and legal validity), 72, 75, 83–85, 87 (explaining Fuller's conflation of this exact distinction), 89, 93 (showing how inclusive legal positivism countenances the possibility that membership conditions come apart from legal validity), 100 (agreeing with the claim that invalid law fails the membership condition), 101–02, 133, 142–43 (refining the membership-validity relation to allow membership for any law ever valid), 170 (institutional constitutive rules set the membership conditions), 190–91 (explaining how formal institutions codify their membership conditions).

67 Crowe (n 62) 240, emphasis added.

68 I can see that from the standpoint of an artefact's creator, creating a token that achieves membership in the intended kind represents a successful creation. But there doesn't seem to be a reason to focus so exclusively here on the creator's perspective, especially when the terminology it generates invites precisely the confusion Crowe is warning us to avoid.

69 Mark C Murphy, ‘The Explanatory Role of the Weak Natural Law Thesis’ in W J Waluchow and S Sciaraffa (eds), Philosophical Foundations of the Nature of Law (Oxford 2013) 12–13.

70 The Functions of Law (n 1) 80 n 41, continuing: ‘There is obviously some vague “open texture” boundary at the edge of any of these sets of artifacts. But that boundary is not captured or clarified by excluding the constitutionally unable and including the mere failures’, 85, 127–28 (discussing the need to accommodate what Beth Preston calls ‘phantom functions’, citing Preston (n 24) 217).

71 I suggest in the book that Aristotle is led to this view by ‘his other metaphysical and taxonomical commitments’ The Functions of Law (n 1) 80 n 41.

72 This is especially true in that no one has yet provided a very clear account of what separates the mere failures from the constitutionally or constitutively incapable. Was the pre-Wright brothers flying machine that was identical to the successful one except in having a slightly misdesigned aerofoil a mere failure or constitutively incapable of fight?

73 Of course, the natural lawyer would agree that positive laws are made by human beings. The question is whether law is an artefactual kind. The strong natural lawyer must say that law in general is not an artefactual kind in order to say that positive laws which utterly fail their natural or rational function thereby fail to be members of the kind. In order to make the membership condition something judgments about which we can be radically wrong, they have to say that the kind is not something entirely invented. I will return to the implications of this for Crowe's theory below.

74 Crowe (n 62) 242.

75 ibid. I’m not sure why his Eldest Child Act has an alternative to killing the eldest child that those subject to the law who fail to kill their eldest children must pay a nominal fine. And Crowe says nothing to explain the fine option in ‘Law as an Artifact Kind’ (2014) 40 Monash University Law Review 737, 753. It seems to undermine his point completely, in that all (sufficiently solvent) parents would simply pay the fine, thereby complying with the law and showing that it could gain acceptance and serve as a deontic marker. I’m going to ignore that alternative in the hope that it makes Crowe's point more strongly to make the law more onerous.

76 The Babylonian Talmud (Sotah 12a) records Rabbi Yosei, son of Rabbi Ḥanina as interpreting this to have been applied to all children, Egyptian and Hebrew alike.

77 Russ VerSteeg, Law in Ancient Egypt (Carolina Academic Press 2002) 5; Raymond Westbrook, A History of Ancient Near Eastern Law, vol 1 (Brill 2003) 26.

78 The fact that the Pentateuch records one famous violation of this law does no more to prove that the law was not generally accepted as binding than the myriad infractions of the speed limit laws prove that those laws are not still accepted as binding.

79 The Functions of Law (n 1) 70, citing Mark C Murphy, ‘Natural Law Jurisprudence’ (2003) 9 Legal Theory 241, 246.

80 Crowe (n 62) 243.

81 ibid 240 n 13.

82 The Functions of Law (n 1) 63, 93, citing Jules L Coleman, ‘Constraints on the Criteria of Legality’ (2000) 6 Legal Theory 171, 179.

83 Hillary Nye, ‘Metaphysics before Method?’ (2019) 10(2) Jurisprudence (this issue) 246, 249.

84 See The Functions of Law (n 1) 141–44.

85 ibid 141–42, citing and quoting Michael Giudice, ‘Conceptual Analysis and Its Critics’ (2012) 6 Problema 3, 21–23.

86 Nye (n 83) 249.

87 The Functions of Law (n 1) 119.

88 Brian Leiter, ‘Explaining Theoretical Disagreement’ (2009) 76 U Chi L R 1215, 1227.

89 Dennis M Patterson, ‘Theoretical Disagreement, Legal Positivism, and Interpretation’ (2018) 31 Ratio Juris 260, 266.

90 Nye (n 83) 252.

91 To this my answer is much the same. There may be more agreement than she realizes. Plus, the fact that there is some continuing philosophical disagreement on many issues does not undermine our ability to use the theories that we see as gaining traction in at least a provisional way to make advances. Some of those advances will then need to be re-evaluated in light of new metaphysical ideas and methods as they arise, even as those new ideas and methods are subject to ongoing debate. Think of the fact that Hart relied so heavily on a method of ordinary language philosophy that we now tend to think is unreliable. We don't simply throw out everything Hart said as a result of this new view. We must return to and re-evaluate his claims in light of our new methods, finding some things that need revision and some elements that can withstand the assessment of the new methods.

92 Nye (n 83) 253.

93 I note in the book reasons that one ‘need not be overly worried that the philosophers and the sociologists would have radically different things to say about law's functions’. The Functions of Law (n 1) 185.

94 See ibid 53 (discussing when to give ‘marching orders’ to sociologists).

95 Nye (n 83) 253, emphasis in original.