ABSTRACT
Here I distinguish two things jurisprudence might take itself to explain. A theory of law can be either concept-first or practice-first. Concept-first theories investigate the concept we implicitly deploy to label some things as law and not others. Practice-first theories investigate directly, and uncover interesting features of, a particular social practice. That practice could be, for instance, the practice of lawyers and officials which prevails in the United States. I identify Hershovitz's Law Is a Moral Practice with a practice-first approach. Then I elaborate on the distinction and show that a practice-first approach is more defensible than many assume. Finally, I argue a practice-first approach rules out predictive theories of law.
I
In this essay I want to distinguish two things jurisprudence might take itself to explain. That may strike you as odd. There are countless disagreements in jurisprudence. Except, typically, this: it is the philosophy of law. So what jurisprudence tries to explain – the object of its inquiry – is law.
Stopping there would be a mistake. For ‘law’ could refer to an idea that encompasses a set of social practices we do, or could, have. Or it could refer directly to the social practices themselves. This lends itself to two different ways of doing jurisprudence.
First, jurisprudence could investigate a pre-existing concept. That concept picks out certain social practices as law. How it does so, for our purposes, does not matter. Maybe the practice fits a set of criteria, sufficiently satisfies certain scalar properties, is analogous enough to a paradigm case, or so on. What is important is that it is our concept. We implicitly deploy it to label some things as law and not others. At the same time, most of us lack a complete mastery of the concept. We do not quite know the precise details. For the concept is not usually the object of serious reflection. It is something we use, but not something we necessarily think about all too much. So the two of us can reach different answers as to whether something is law, even if we are both applying the same concept. And that is where jurisprudence comes in. It invites us to carefully arrive at some considered judgments about our concept of law. Call this concept-first jurisprudence.
Second, jurisprudence could investigate directly, and uncover interesting features of, a particular social practice. That practice could be, for instance, the practice of lawyers and officials which prevails in the United States. Now we happen to describe this practice as law. But that is not our immediate concern. For jurisprudence, from this view, starts with the social practices themselves, not any intermediary ideas about how those practices relate to each other. Call this practice-first jurisprudence.
To bring out the difference, consider the following analogy: take a bunch of data points plotted on a scatter chart. Now run a linear regression analysis. In effect this draws a line between the plotted points. And that, in turn, tells us potentially helpful things about the data as a whole. Here the individual points are, in themselves, of secondary importance, if at all. The focus is on how the points relate to each other. What emerges is a picture which lets us predict certain outcomes from a set of independent variables.
Some suppose legal theory is like this. Various legal practices are our data points. English law is one point, and Chinese law another. And the focus is on how those points relate to each other. Specifically, the thing they all have in common: that they are ‘law’, whatever else they might be. This is a concept-first approach to jurisprudence. But it is not the only way to do things. We could take a practice-first approach. If so, legal theory would be quite unlike regression analysis. For the primary object of inquiry would be the particulars, not the relation between those particulars.
Concept-first approaches have been criticised. For we may doubt the existence of a single concept.Footnote1 Perhaps disagreement is too pervasive. You may have one idea of law, and I another. Which idea should jurisprudence investigate? There is, the critics say, no a priori correct answer. Another worry arises even if we assume the existence of a shared concept. Ordinarily, those who investigate our concept are not interested in the concept for its own sake. It may be the object of their inquiry – their starting point – but not what they are ultimately after. Rather they wish to uncover the nature of law. The two are different. Our concept consists of the ideas we rely upon to distinguish some social practices from others. Those ideas may change over time. Accidents of history may affect which concept we arrive at. By contrast, law’s nature is constant. It consists of necessary features which law must have. The hope is that reflecting on our concept of law will facilitate the search for these necessary features. It may be a false hope.Footnote2
Here I largely set these worries aside. I want to focus, instead, on the prospects of a practice-first approach. Many are embarrassed by it. For it seems incompatible with a popular vision of general jurisprudence. The vision is rather ambitious. It is common ground that jurisprudence searches for a theory of law. But that theory, according to this vision, is concerned with law in general. It tries to illuminate important features of law’s nature. And so it transcends the bounds of a particular legal system, like those in America or China.
There is no incompatibility. To see this, consider the difference between the object of an inquiry from what that inquiry produces. Here is an illustration: the object of a murder investigation is the evidence of a crime. What that investigation produces is a hypothesis about the likely suspect. Obviously the two are not the same. A similar dynamic arises in jurisprudence. What we investigate may be the practice of American lawyers and judges. But we could uncover features about that practice that transcend the particular American context. We can come up with features of general applicability. And those features, together, may lead to a concept of law in general.
Hence practice-first approaches can produce a conceptual theory. But notice something important: what they produce is a theory that proposes a concept. It would not be a theory about a concept. The theory does not seek to illuminate a pre-existing concept. Rather it produces a concept as the best way to think about the practice.Footnote3
Proposing a concept is a way for concepts to be relevant under a practice-first approach. But there is another. For a concept of law – an idea which refers to some things as law, and others as not – could form part of the practice we investigate. Lawyers argue about what the law requires. And when judges make decisions, they insist they are bound by the law. All they do is report the content of the law, or so they often say. These kinds of claims presuppose a concept of law. That they make these claims, in turn, is an important part of American legal practice. Those who seek to do practice-first jurisprudence must take it seriously, and on its own terms.
The rest of this essay elaborates on two points. First, that a practice-first approach can be attractive. As I briefly suggested, it does not doom jurisprudence to a parochial exercise. Among Scott Hershovitz’s achievement in his new book is to give us a striking illustration of the promise of a practice-first approach.Footnote4 Second, that a practice-first approach need not wholly do away with concepts. One way is by crafting a concept that the theory recommends we adopt. But here I focus on another possibility. A concept of law could form part of the practice that jurisprudence seeks to explain. That is, the practice may presuppose a concept. This is something a practice-first approach must address. Eliminativism about law may therefore need qualification.
II
Hershovitz says law is a moral practice.Footnote5 Lawyers and judges, when they do law, seek to rearrange our moral relationships. This strikes me as an important, and true, feature about our legal practice. It is what occurs in American courtrooms. And, I suspect, in courtrooms around the world. Indeed, I am tempted to say it is what litigation, anywhere, must be about if it is to be litigation.
This is not a plausible way to demarcate law from non-law, however. When I look to the practice of American lawyers and judges, I would not describe their practice as law because it is a moral practice. Law might be a moral practice. But so are lots of non-legal practices. The practice of making promises, for instance, is also a moral practice. It is one way, among many, to try and change what we owe each other. What Hershovitz is after, then, is not a feature that makes law unique. Quite the opposite – he shows us the radical continuity between law and our other moral practices.Footnote6
Perhaps our concept of law refers exclusively to practices that seek to rearrange our moral relationships. But Hershovitz never explicitly argues for this proposition. Nor need he. Whether or not it forms part of our concept, it is an interesting feature about the practice we have. It just is the case that American legal practice seeks to rearrange our moral relationships.
I therefore take his account as a leading example of a practice-first approach. It asks us to reflect on the practice of lawyers and judges around us. Doing so might lead to some important insights. And it does not resort to any assumptions about why we might refer to that practice as law.
Hershovitz sets an example that helpfully dispels possible misconceptions about practice-first approaches. Take the worry it cannot get at general features of law. This is plainly false. Being a moral practice is as general as can be. It is a feature of American legal practice. But it is a feature that many practices share.
Another worry is that, by starting with the practice of American (or British, or Chinese) lawyers, we cannot arrive at necessary features. Here it would be helpful to know the contingent circumstances we are meant to avoid. The economic health of a society might be one. Some are rich, others poor. Another might be its cultural beliefs. Some are religious, others secular. Yet another could be the content of its social morality. Slaveholding societies, for instance, are seriously misguided about right and wrong.
That American law is a moral practice does not depend on these contingent circumstances. It would be true even if Americans were poorer, less religious, and (still) owned slaves. It is therefore a feature that holds true across a range of contingencies. Now let us go the other way. What would American law look like if it were not a moral practice? Whatever else we might say about it, I think this is safe: it would be unrecognisable as our practice.
I therefore conclude practice-based approaches can deliver general and necessary features of a social practice, like American law. But that may leave you unsatisfied. Something is missing. For you may want to know how the practice around here relates to other similar practices across space and time. Part of American law’s significance lies in how it is the way Americans participate in a tradition shared by so many others. Can a practice-first approach explain this?
It can. For the practice around here could fulfil certain perennial needs, or address a set of timeless problems. Grasping these needs is one way to discriminate between various aspects of our practice. It may, in short, allow us to pick out especially interesting features that our practice possesses. No theory aims to simply list out all the features of a practice.Footnote7 It must emphasise some and ignore others. But our needs could also help situate our practice with the practices that prevail elsewhere. Those practices are how different societies, in many respects so different from our own, grapple with the same problems. American legal practice is therefore significant, in part, given the universality of the needs it addresses. All of us need ways to rearrange our moral relationships. Hence why promising is such a pervasive practice. Law too.
Now consider this rather different worry. You may doubt the significance of the distinction. For all theories of law reflect on our actual practices. To be sure, some take, as the object of their inquiry, the idea that allows ‘any educated man’ to discern the salient features of law.Footnote8 Even their attention, however, must swiftly turn elsewhere. For they are after the ‘latent principle’ which guides our characterisation of certain social practices as law.Footnote9 It must do so by reference to certain features that those practices possess. But now we are back to reflecting on the social practices themselves. And the emphasis, surely, will be on the practices the theorist is familiar with. The distinction between this, and just starting with a familiar social practice (for Americans, that would probably be American law) seems rather thin. What difference does it make?
For one, we would sidestep the concerns with conceptual analysis. Suppose the critics are right. Our disagreement about what counts as a legal practice reveals we have many different concepts of law. This presents a problem for the concept-first approach. For, before we could do jurisprudence, we would need to choose which concept to theorise about. This raises the possibility of our disagreement boiling down to a difference of where we choose to begin. No such worries arise with a practice-first approach. We all have social practices that command our interest. Among them could be the practice of lawyers that prevails in our jurisdiction. And there is plenty of space for meaningful disagreement about the nature of that practice.
For another, it could bound our inquiry in useful ways. Often our linguistic practice of identifying some practices as law, and others as not, arise outside legal practice. A historian may say certain societies had law. A sociologist may disagree. And a philosopher will surely explain how both are wrong. None of them make these assessments as part of legal practice. They are not judges. Nor are they lawyers making legal arguments. Or any sort of legal official, for that matter. So a practice-first approach need not seek to explain these linguistic practices. It would limit itself to the actual practice of participants within the social practice.
Relatedly, it could affect the significance of certain intuitions. We all have assumptions about what ‘law’, understood as a general phenomenon, must be like. Taking those assumptions as the object of our inquiry will elevate the significance of our demarcation intuitions. Put another way, the concept-first view will emphasise the criteria that single out the social practices that count as law.
Some think this a feature, not a bug. The object of jurisprudence, on this view, is precisely to make sense of our line-drawing intuitions. But that need not be our primary aim. It may just be a ‘secondary concern’.Footnote10 If so, it would be better to start with the social practice itself. That is, we should explicitly recognise the actual instantiations of a social practice of law as the object of jurisprudence.
So suppose we decide to investigate American legal practice. How do we identify the contours of the practice? We should look to what American lawyers and judges do. To be sure, not all that they do. What lawyers do when they get coffee in the morning is not part of the practice. But the rough bounds of the practice – trying to persuade judges counts, while buying coffee does not – is tolerably clear from within the practice. Similarly, the participants of American legal practice agree on the criteria for identifying lawyers: those whom the bar association certifies.
This partly defines the practice by reference to a concept shared by that practice’s participants. A concept internal to legal practice, for instance, identifies lawyers. But lawyers are also among the participants who share that concept. This sounds circular. We need to know where to look to find the concept that tells us where to look. Clearly we will, at some point, need to break the circle. To get the ball rolling, we need to rely on some pre-theoretic assumptions from outside the practice. They would let us identify certain things as forming part of legal practice. Then we could look there for concepts internal to that practice.
This would be problematic if a theoretical disagreement were traceable to those starting assumptions. That risks us talking past each other. So these assumptions should not be controversial. But this is not too high a bar. We all know, for instance, that legislators casting votes in Congress is part of the practice, while legislators socialising at a bar is not. Supreme Court arguments are in, while moots are out. It is the difference between judicial opinions in the Federal Reporter and those in a law review.
So let us proceed with the practice-first approach. What follows? Well, it may push jurisprudence to be more concerned with the technical concepts and doctrines internal to our practice. If the object of inquiry is the particular practice of law around here, we must pay heed to the details. I do not doubt the value of applying abstract philosophical tools to explain our practice. But we cannot ignore the specifics, for they are features of the practices which our tools investigate. Jurisprudence cannot be autonomous of the law that is actually practiced. The character of judicial reasoning matters. How lawyers reason through cases matters. It is not enough to take the internal perspective of those lawyers, if all that is meant is the attitude they adopt with regard to the rules of their practice. How that acceptance manifests itself – the techniques they deploy, and the justifications they profess – are part of the practice which jurisprudence investigates. Legal philosophers must be lawyers, too.
III
Some say we should eliminate law. Such eliminativism comes in many flavours. Here is one: that law is not a set of norms.Footnote11 By this Hershovitz means there is no single explanation as to why something is the law. Indeed, he suggests the ‘original sin among philosophers of law is the rigid insistence that this and not that set of norms counts as the law of a community’.Footnote12 So law could be the set of norms which are enforced. Or the set validated by a rule of recognition which officials accept. Or the set of morally authoritative norms.
Is this pluralism? On this reading, there are many true things about the content of the law. The law consists of the set of enforced norms and the set validated by a rule of recognition and …
This is a possible view, but not what I think Hershovitz has in mind. After all, he says all three sets ‘could plausibly be called the law of the community, depending on what we are trying to convey. So, I suspect, could several other sets’.Footnote13 Emphasis on ‘could’. What comes to mind is something reminiscent of Schrödinger’s cat. That law is the set of enforced norms is both true and false. Or, perhaps, neither true nor false. Boiled down, the message is this: there is nothing that the law of our community just is. There is always an implicit subtext. Perhaps we are really trying to get at the set of enforced norms, or the set validated by a rule of recognition, or the set of morally authoritative norms. Until we specify the subtext, it is both true and false that any given set of norms is the law.
There is a looming possibility. What if legal practice presupposes a single notion of legal norms? What is more, what if that notion is exclusive, such that it rejects all other possible notions as mistaken? If legal practice is our object, we could privilege a particular set of norms – the set that corresponds to the notion of law presupposed by the practice – as the law, full stop. In other words, we could pick out a particular set of norms, among all the other sets of norms, as constituting the law.
Now you could endorse the conditional yet deny that it obtains. Like Hershovitz, you could reject the claim that legal practice presupposes a singular notion of ‘the law’. Here we disagree; in my view the practice does presuppose a singular notion. This is why I am not an eliminativist about law. Here, though, I want to focus on what I worry is an especially pernicious inclusion to the list of ‘possibly legal’ sets of norms. Along the way, I hope to illustrate a strategy which can be deployed to reject other candidate sets, too.
That especially pernicious inclusion is the set of norms that officials actually enforce. I do not, myself, wish to give any quarter to the sceptics who insist the law boils down to predictions of what officials will do. Among the faults of this view is that it badly distorts the internal perspective of judges, and therefore legal practice. It is a false doctrine, and nothing more than that.
Just now I said it badly distorts how judges think. Perhaps that narrow focus is the problem? Sometimes lawyers, in their advice to clients, predict how judges will rule. Hershovitz takes this observation to support the possibility of law being the norms that officials actually enforce. This is wrong three times over. But you only need to agree with me once to reject this line of thinking.
First, on this issue, the practice of judges takes priority over that of lawyers. For judges aim to determine the content of existing law. By contrast, lawyers (sometimes) argue, and advise others, about that content. Here is an analogy: the acts of historical figures, like Julius Caesar, partly determine historical facts. By contrast, historians argue about those historical facts. What historians do is parasitic on what historical figures do. Historiography – the study of the study of history – is surely important. But it would be a mistake to view historiographical claims as directly competing with historical claims. The same goes for law. Suppose judges understand existing law one way, and lawyers (sometimes) another. The two are not in direct competition. Judicial practice should therefore have priority.Footnote14
Second, even if the practice of lawyers is relevant, the advice lawyers give to their clients is the wrong place to look. When lawyers make arguments in the courtroom, they participate in the same aspect of legal practice as judges. They are arguing about the content of the law. And so this aspect of their practice, like those of judges, might be part of the data our theory must explain. Not, however, the practice of how lawyers advise their clients. Lawyers serve their clients, and within the context of that relationship they may give all sorts of advice. They may make suggestions on what to wear in court to best earn a jury’s sympathy. They may recommend ways to spin a court loss in a press release. And yes, they may offer predictions on how a court is likely to rule. They could, for instance, recommend filing a case in a particular district to increase the likelihood of getting a sympathetic judge. Or they could recommend settling a case, despite thinking the law is clearly on their client’s side – and that a higher court would agree – because the lower court is likely to rule against them. For even a short-term loss could be too financially painful. Knowing when and how to give such advice is an important part of being a good lawyer. But it is not the aspect of their practice with which we are concerned. Such advice is, well, advice, not legal argument.Footnote15 They are directed at clients, not judges or (typically) fellow lawyers. They do not get at the sort of thing we are trying to explain: the notion of law presupposed by legal practice.
Third, when giving predictive advice, lawyers typically refer to what would be in the client’s best interest to do. They may say ‘it would be better to sue in this district’. Or ‘doing that will get you in trouble’. When they mean to only relay a predictive claim, it would be odd for them to rely on a claim about legal content. They would say ‘a court is likely to find this unlawful’, not ‘this is unlawful’. By contrast, when making arguments in court, the dynamic flips. It would be highly unusual for them to refer to bare claims about what the judge, or her colleagues, are likely to do. They would say ‘this is the law’, not ‘this is how the Supreme Court will probably rule, in light of yesterday’s new appointment’.
Even judges, of course, sometimes refer to predictive claims. But it is easy to draw the wrong lesson from this observation. We should not take it to undermine the thought that legal practice rejects the predictive view of law.
Take this concrete example: the Erie doctrine is part of American law. Briefly, it tells federal courts, in common-law cases, to defer to state courts.Footnote16 But what if state courts are unclear? Many federal courts have taken to predicting how the state’s highest court will rule.Footnote17 Under this approach, federal courts apply the rules that they predict the state’s highest court will endorse.
Here we see American judges arrive at the ‘law’ through predictive claims about what other judges will do. This seems to support Hershovitz’s point. Not necessarily, however. Say you faced a hard choice. So you ask: What would Abraham Lincoln do? Or someone else whose judgment you admire. You act in accordance with how you predict they might act. But this does not assume the choice is correct because they would choose it. Supposing the choice was correct, it was, let us say, correct because the balance of your reasons favours it. Those with good judgment could just be in an epistemically privileged position with respect to those reasons.
So too with Erie. Now I myself believe the case was a horrible mistake. But it was clearly premised on the view that state courts are in an epistemically privileged position (as compared to federal courts) to know what a state’s common law requires.
A better place to look would be those areas of law where courts clearly reject any notion of epistemic inferiority. An obvious example is the Supreme Court of the United States on constitutional questions. Here, the predictive view is incompatible with legal practice. Have a look at a scathing dissent by, say, Justice Kagan. It is unintelligible if legal arguments were directed at how five Justices of the Court are predicted to rule. For there is nothing left to predict; she knows how they ruled. The predictive view cannot explain the sense in which the majority can be wrong, let alone the anger one might feel in response to their being wrong.
I therefore conclude the law cannot be the norms that officials actually enforce.
IV
A recent critique of anti-positivism argues it is committed to propositions that the participants of the practice would flatly reject.Footnote18 Now I happen to think the argument falls short. But the success of this critique is not my present concern. Here I want to make a more basic point. The critique is a good example of the right kind of disagreement for practice-first theories.
Along this line, Dworkin argues positivists cannot adequately explain the role of principles in the actual practices of lawyers and judges.Footnote19 It is not that a positivist explanation of principles is impossible. Rather their explanation distorts the nature of the practice.Footnote20 For concept-first positivists, this could be an acceptable cost. Their concept of law might not emphasise the precise way in which judges reason with principles. An explanation that is merely minimally consistent with the existence of legal principles might suffice.
But this is unacceptable for those who take, as the object of their inquiry, the actual practices of lawyers and judges. The task is to accurately explain the interesting features of those practices. So legal practice must take priority. Any concept of law must come later. Dworkin says the judges around here reason with principles in a distinctive way. Here I have sought to defend another claim: that, around here, judges reason about laws in ways that are incompatible with law being the set of norms which officials actually enforce.
That judges around here do so, of course, does not entail it is the practice of judges everywhere. To take actual practices as the object of inquiry is necessarily limiting. Practice-first approaches cannot begin with universal claims. Rather we could, like Greenberg, start with what law is like in ‘the United States or Massachusetts or France’.Footnote21 Or, more generally, we could seek to explain a ‘particular legal culture, generally the culture to which [the theorist] belongs’.Footnote22
Does it follow that practice-first theories are committed to the view that ‘it is wrong to think that there can be a general theory of the nature of law’?Footnote23 No: practice-first theories could end with claims about law in general. Here is one possibility: upon reflecting on American legal practice, we could conclude it is necessarily a moral practice. This feature could be so fundamental – so resistant to contingent circumstances – that we cannot imagine a practice which, although meaningfully similar to American legal practice, does not aim at rearranging our moral relationships.
Acknowledgement
My thanks to Conor Crummey, Timothy Endicott, Hilary Nye, George Pavlakos, Trenton Sewell, Nicos Stavropoulos, and of course Scott Hershovitz.
Disclosure statement
No potential conflict of interest was reported by the author(s).
Notes
1 H Nye, ‘Does Law “Exist”? Eliminativism in Legal Philosophy’ (2022) 15 Washington University Jurisprudence Review 29, 42–44; D Priel, ‘Jurisprudence and Necessity’ (2007) 20 Canadian Journal of Law and Jurisprudence 173, 187–89.
2 Nye, ‘A Critique of the Concept-Nature Nexus in Joseph Raz’s Methodology’ (2017) 37 Oxford Journal of Legal Studies 48, 59–67.
3 cf H Cappelen, Fixing Language: An Essay on Conceptual Engineering (Oxford University Press 2018).
4 S Hershovitz, Law is a Moral Practice (Harvard University Press 2023). All references to Hershovitz are to this book.
5 Starting from, well, the title.
6 cf Gardner, From Personal Life to Private Law (Oxford University Press 2018).
7 J Finnis, Natural Law and Natural Rights (Oxford University Press 2011) ch 1.
8 HLA Hart, Concept of Law (Oxford University Press 2012) 3.
9 ibid 14.
10 ibid 17.
11 Hershovitz (n 4) 82–84.
12 ibid 83.
13 ibid 84.
14 Not to say, of course, that only the practice of judges should count. For instance, to take an example in American law, I think the practice of the lawyers at the Department of Justice’s Office of Legal Counsel should count, too.
15 cf R Dworkin, Law’s Empire (Harvard University Press 1986) 11–12 (‘But of course there is more to legal practice than arguments about law … There is very little here about issues of fact, for example … Nor do I discuss the practical politics of adjudication, the compromises judges must sometimes accept’).
16 Erie Railroad Co v Tompkins 304 US 64 at 78–79 (1938).
17 See generally BR Clark, ‘Ascertaining the Laws of the Several States: Positivism and Judicial Federalism after Erie’ (1997) 145 University of Pennsylvania Law Review 1459, 1495–1517.
18 H Dindjer, ‘The New Legal Anti-Positivism’ (2020) 26 Legal Theory 181.
19 R Dworkin, Taking Rights Seriously (Harvard University Press 1977) 34–39.
20 R Dworkin, Justice in Robes (Harvard University Press 2006) 225.
21 M Greenberg, ‘The Moral Impact Theory of Law’ (2014) 123 Yale Law Journal 1288, 1295.
22 R Dworkin (n 15) Law’s Empire 102.
23 J Raz, ‘Two Views of the Nature of the Theory of Law: A Partial Comparison’ in Jules Coleman (ed), Hart’s Postscript: Essays on the Postscript to the Concept of Law (Oxford University Press 2001) 37.