Abstract
This chapter continues to develop an account of the general concept of a source of law. It does so by associating sources of law with content-independent reasons for action (a Hartian concept). Sources of law are things (such as documents and practices) systematically treated by judges as providing content-independent reasons for deciding legal cases one way or another. Hart’s notion of content-independence is revisited and defended from criticism. It is argued that content-independence should not be confused with peremptoriness, another important Hartian concept. A source of law may provide content-independent reasons for action that are not peremptory and that, thus, are subject to being defeated by considerations pertaining to the (lack of) wisdom or soundness of the action prescribed by the relevant source. To the distinction between content-independence and peremptoriness another one is added: namely, the distinction between the use of a source and the enforcement of a norm. These two distinctions are crucial to understanding the difference between mandatory and permissive sources of law.
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Notes
- 1.
Whenever I speak of sources “providing” and of norms “functioning as” reasons for action in the course of this book, the reader should understand me as making a claim about the role that sources and norms play in the practical deliberations of the relevant agents. Like Hart, my main purpose is not to make normative claims about the reasons that are in fact supplied by legal norms. My purpose is instead to understand legal reasoning as it is performed by legal officials, especially judges. That involves determining what judges generally regard as reasons for action; whether their normative attitudes are warranted or not is a different issue which is not explored here in any detail. Chapter 6 will be the only exception to an otherwise non-normative enterprise.
- 2.
To be sure, Hart expressed doubt about whether the rule of recognition itself should be classified as a legal rule or not (1961, 108).
- 3.
I might also have used the terms “reasonableness” or “correctness”.
- 4.
The account of content-independence offered here finds inspiration in what Schauer (2009, Chap. 4) has recently said about the subject. I do not unqualifiedly endorse Schauer’s views, however, because at times he seems to conflate the notions of content-independence and peremptoriness (or something like it): “[The force of rules and precedents] derives not from their soundness but from their status, and philosophers of law refer to this feature of authority as content-independence. When a rule (or a command, an order, or an instruction) is authoritative, its subjects are expected to obey regardless of their own opinions of its wisdom”. (ibid., 62, footnote omitted). For me, a reason is content-independent if it applies to an agent simply by virtue of the fact that it can be associated with a certain source. The fact that a reason applies to an agent does not entail, however, that it preempts (or even overrides) all other possibly conflicting reasons. The peremptory nature of a reason is not to be confused with its content-independence, even though both features are possessed by authoritative reasons. Schauer’s conflation is displayed in his assertion that a content-independent reason compels a subject to obey (a notion implying the existence of a conclusive reason to comply).
- 5.
But see Shapiro (2002, 406–407) for a claim to the effect that Hart never really held such a strong view of peremptoriness and therefore would not have disagreed with Raz.
- 6.
Green (2009, 20) has provided a similar account of permissive sources of law: “Permissive sources get the force they have, not from their merits, but from the fact that they are actually recognised and applied as reasons for decision in the practice of the courts. But they are weak reasons whose weight is variable”.
- 7.
Peczenick’s terminology is useful, but it can also be misleading. In fact, to be perfectly honest, so can the use of the term “permissive”: “We need to be cautious here, for if they are permissive sources, then they are not, as one might think, mere permissions, for sources are prima facie reasons for courts (and others) to act. But being permitted to φ is not normally any sort of reason to φ (though it may be a reason for others not to interfere with one’s φ-ing).” (Green 2009, 19) Leslie Green does not distinguish between sources and norms like I do but he makes a good point that needs to be acknowledged. Lack of reference to permissive sources does not generate criticism and that is why we can say that they “may” be used. But this should not obscure the fact that the norms deriving from permissive sources have some weight; they are not norms that merely permit some act, but norms that effectively prescribe it (for further clarification, see the distinction between use and enforcement in the text below).
- 8.
- 9.
Considerations of policy and principle will have more power, and hence will more likely be used by judges defying mandatory sources, when it can plausibly be argued that the considerations in question have significant social support, that is, when they do not derive exclusively from the personal convictions of the judges but reflect aspirations of the wider community. See Eisenberg (1988, Chap. 4) for an argument to the effect that common law judges typically appeal to those considerations of policy and principle which they believe to have significant social support.
References
Alexander L (1990) Law and exclusionary reasons. Philos Topics 18:5
Atiyah P, Summers R (1987) Form and substance in Anglo-American law. Clarendon Press, Oxford
Bronaugh R (1987) Persuasive precedent. In: Goldstein L (ed) Precedent in law. Clarendon Press, New York
Eisenberg M (1988) The nature of the common law. Harvard University Press, Cambridge
Eisenberg M (2007) The principles of legal reasoning in the common law. In: Edlin D (ed) Common law theory. Cambridge University Press, New York
Gardner J (2007) Some types of law. In: Edlin D (ed) Common law theory. Cambridge University Press, New York
Green L (2009) Law and the causes of judicial decisions. Oxford legal research paper series. Paper No. 14/2009. Available at http://ssrn.com/abstract=1374608. Accessed on 20 November 2011
Hart HLA (1961) The concept of law. Clarendon Press, Oxford
Hart HLA (1982) Commands and authoritative reasons. In: Hart HLA (ed) Essays on Bentham: jurisprudence and political theory. Oxford University Press, New York
Leiter B (2007) Naturalizing jurisprudence: essays on American legal realism and naturalism in legal philosophy. Oxford University Press, New York
MacCormick N, Summers R (eds) (1991) Interpreting statutes: a comparative study. Dartmouth, Aldershot
Markwick P (2003) Independent of content. Legal Theor 9:43
McCrudden C (2000) A common law of human rights? Transnational judicial conversations on constitutional rights. Oxford J Legal Stud 20:499
Peczenik A (2005) Scientia juria: legal doctrine as knowledge of law and as a source of law. Springer, Dordrecht
Perry S (1989) Second-order reasons, uncertainty and legal theory. South Calif Law Rev 62:913
Raz J (1985a) Authority and justification. Philos Public Aff 14:3
Raz J (1985b) Authority, law and morality. Monist 68:295
Schauer F (2004) The limited domain of law. Va Law Rev 90:1909
Schauer F (2009) Thinking like a lawyer. A new introduction to legal reasoning. Harvard University Press, Cambridge
Sciaraffa S (2009) On content-independent reasons: it’s not in the name. Law Philos 28:233
Shapiro S (2002) Authority. In: Coleman J, Shapiro S (eds) The Oxford handbook of jurisprudence and philosophy of law. Oxford University Press, New York
Summers RS, Eng S (1997) Departures from precedent. In: MacCormick N, Summers RS (eds) Interpreting precedents: a comparative study. Dartmouth, Aldershot
Waluchow W (1994) Inclusive legal positivism. Oxford University Press, New York
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Shecaira, F. (2013). Sources and Reasons. In: Legal Scholarship as a Source of Law. SpringerBriefs in Law. Springer, Heidelberg. https://doi.org/10.1007/978-3-319-00428-0_3
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