Abstract
Two marks of a mature field of inquiry are that its central problems are well-formulated and that its conventional wisdom is sound. Even in the most mature fields, however, the conventional wisdom can sometimes be misleading and the central problems poorly cast. Unfortunately, this is the state of affairs in analytic jurisprudence. Progress can be made only if much of the conventional wisdom is displaced and its central questions are reframed.
Originally published at Yale Law Journal, 121 (1): 2–80. The editors are greatful to Yale Law Journal for their permission to reprint this paper.
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- 1.
As a Torts teacher, I feel compelled to issue a warning; whether it is adequate to relieve me of responsibility is another matter. I pride myself on writing clearly and especially in having the ability to communicate difficult and technically demanding material in an accessible manner. I try to do the same here and for the most part, I believe, successfully. That said, the discussion in Part VI is very demanding, and I could find no way of getting the points across that makes for pleasurable reading. I believe, however, that anyone who is prepared to work through the argument can understand it (whether they agree with the conclusions or not). I have avoided the use of logical notation and technical jargon wherever doing so is at all possible. To be honest, it is not as if, but for Part VI, the Article reads like a summer novel, but it should provide no special barriers to comprehension beyond the need to read carefully and stay awake while doing so.
- 2.
See Jules L. Coleman, Negative and Positive Positivism, 11 J. Legal Stud. 139, 140–141 (1982).
- 3.
In a private correspondence, Ori Simchen has suggested that the necessity of the separability thesis in fact distinguishes legal positivism from natural law theory insofar as legal positivism is compatible with the necessity of the separability thesis, whereas natural law theory is not. That is, the separability thesis may be compatible with natural law theory, but its necessity is not. I do not disagree, but my claim is that the separability thesis (not the necessity of the separability thesis) is inadequate to distinguish legal positivism from natural law. Beyond that, as I demonstrate below, nothing in legal positivism requires the separability thesis, so it hardly can be essential to it. In fact, the most compelling arguments for certain forms of legal positivism rely on rejecting the separability thesis, not endorsing it—let alone its necessity!
- 4.
Compare Fernando Atria, Legal Reasoning and Legal Theory Revisited, 18 Law & Phil. 537, 547 n.6 (1999) (describing the separability thesis as the proposition that “from the fact that a legal solution is morally objectionable it does not follow that it is legally mistaken”), with Kenneth Einar Himma, Inclusive Legal Positivism, in The Oxford Handbook of Jurisprudence and Philosophy of Law 125, 136 (Jules Coleman & Scott Shapiro eds., 2002) (“[T]he Separability Thesis asserts that there exists at least one conceptually possible legal system in which the criteria of validity are exclusively source- or pedigree-based.”).
- 5.
Leslie Green, Positivism and the Inseparability of Law and Morals, 83 N.Y.U. L. Rev. 1035, 1040 (2008).
- 6.
John Austin, The Province of Jurisprudence Determined (1832), reprinted in The Province of Jurisprudence Determined and the Uses of the Study of Jurisprudence, xxiii, 184 (Hackett Publishing Co. 1998).
- 7.
The pervasiveness of the concept of legal validity attests again to the influence of Hart’s The Concept of Law, in which there is a rule of recognition and other rules subsidiary to it. The authority of these rules as law depends on their validity under a rule of recognition that is itself neither valid nor invalid, but merely exists or not. See H.L.A. Hart, The Concept of Law 94–95 (Penelope A. Bulloch & Joseph Raz eds., Oxford Univ. Press 2d ed. 1997) (1961). Following Hart, legal philosophers have invoked a way of thinking according to which a norm is a law only if it is valid and valid only if it satisfies appropriate criteria of validity. See, e.g., Stephen Munzer, Validity and Legal Conflicts, 82 Yale L.J. 1140, 1148–1150 (1973).
- 8.
On my reading, Dworkin also resists the corollary idea that a legal system is a code of any sort—let alone a code of rules that must satisfy membership or validity conditions. Indeed, both Dworkin and Mark Greenberg have developed jurisprudential outlooks that do not rely on the idea of ‘a law’—at least insofar as particular laws are to be identified with statutes, regulations, or particular authoritative acts of any sort. Ronald Dworkin, Justice in Robes (2006); Ronald Dworkin, Law’s Empire 410–413 (1986); Mark Greenberg, How Facts Make Law, 10 Legal Theory 157 (2004) [hereinafter Greenberg, How Facts Make Law]; Mark Greenberg, The Standard Picture and Its Discontents, in 1 Oxford Studies in Philosophy of Law 39 (Leslie Green & Brian Leiter eds., 2011) [hereinafter Greenberg, Standard Picture].
- 9.
In putting the point in terms of the conceptual coherence of immoral law, I do not mean to be committing jurisprudence to conceptual analysis. The point I am making, in a way that is explicitly neutral about conceptual analysis, would go as follows. The natural lawyer could just as easily suppose (and a legal positivist deny) that the concept of immoral law is necessarily empty but not semantically incoherent (much like the concept of a water molecule applying to nothing as a matter of logical necessity), and a natural lawyer could just as easily suppose (and a legal positivist deny) that a sentence asserting a particular legal requirement to be immoral is necessarily false rather than contradictory (much like the sentence ‘water is an element’). Again, I am grateful to Ori Simchen for this more precise formulation.
- 10.
See, e.g., Kenneth Einar Himma, Final Authority To Bind with Moral Mistakes: On the Explanatory Potential of Inclusive Legal Positivism, 24 Law & Phil. 1, 7 (2005) (“Classical natural law theorists... argue that there are necessary moral constraints on the content of the law.... In contrast, positivists hold it is the conventional practices of officials that determine the second-order legal norms which constrain judicial decision-making.”).
- 11.
Augustine, On Free Choice of the Will bk. I, § 5, at 8 (Thomas Williams trans., Hackett Publ’g Co. 1993) (c. 400 AD); see also 2 Thomas Aquinas, Summa Theologica, question 96, art. 4, at 70 (Fathers of the English Dominican Province trans., 1915) (c. 1274) (“[A] law that is not just, seems to be no law at all.”).
- 12.
To be sure, one need not identify natural law theory with the claim that ‘an unjust law is no law at all’, and some important contemporary natural lawyers do not. In the case of some of these scholars, there is no question that natural law theory is compatible with the possibility of immoral laws, and so, I spend no time in what follows focusing on their work. See, e.g., John Finnis, Natural Law and Natural Rights 360–363 (1980); Mark C. Murphy, Natural Law in Jurisprudence and Politics (2006). Instead, I focus on those versions of natural law theory that initially seem inconsistent with the possibility of immoral laws and take my task to be showing that, even in those cases, initial appearances are misleading.
- 13.
Ronald Dworkin, Taking Rights Seriously 17 (1978).
- 14.
This latter idea is suggested by the fact that law is a social construct, designed by persons to pursue certain aims and goals and measurable or evaluable in terms of whether it achieves them. In this sense the failure to succeed does not rob a norm or a system of governance of the status of law; it is merely a way of evaluating the law—as successful or not.
- 15.
It is important to note that ‘success’ here is being used in its evaluative sense, not as a criterion for applying the concept. The assumption is that whatever the criteria for ‘law’ may be, jurisprudence should proceed by studying the cases in which laws do what they are designed to do—cases in which they succeed. Here, then, binding the conscience is a substantive claim about what constitutes success for law.
- 16.
I take John Finnis to be a natural lawyer who adopts the general methodology of focusing on the central case and as someone who identifies the central case with the successful one. See Finnis, supra note 12, at 9–16.
- 17.
Joseph Raz, The Authority of Law 28–33 (1979).
- 18.
Dworkin, Law’s Empire, supra note 8, at 400–413.
- 19.
Hart, supra note 7, at 55–57 (discussing the “internal aspect”).
- 20.
Id. at 89–91.
- 21.
See, e.g., Kenneth Einar Himma, Positivism and Interpreting Legal Content: Does Law Call for a Moral Semantics?, 22 Ratio Juris 24, 26–27 (2009).
- 22.
See, e.g., Dworkin, Law’s Empire, supra note 8, at 247–266 (discussing the role of “fit”).
- 23.
Among the best discussions of the law’s point of view are Raz, supra note 23, at 140–143; and Scott J. Shapiro, Legality 184–188 (2011).
- 24.
Hart, supra note 7, at 103–104. My view is that democratic legitimacy does not require that citizens adopt the law’s point of view but requires instead an element of fidelity to law. Fidelity is expressed in terms of actions and attitudes displaying ‘support’ for political institutions: doing one’s share to sustain them and to encourage them to act for the common good in accord with the demands of justice. All this is quite different from regarding the law’s demands as stating moral requirements or permissions; that is a much stronger constraint.
- 25.
Hart, supra note 7, at 116–117; see also Shapiro, supra note 23, at 93 (describing Hart’s account of the internal point of view); Scott J. Shapiro, What Is the Internal Point of View?, 75 Fordham L. Rev. 1157, 1164 (2006) (same).
- 26.
See, e.g., Raz, supra note 17, at 19 (discussing authority).
- 27.
See, e.g., Lon L. Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev. 630, 633 (1958).
- 28.
See, e.g., H.L.A. Hart, Book Review, 78 Harv. L. Rev. 1281, 1289–1290 (1965) (reviewing Lon L. Fuller, The Morality of Law (1964)).
- 29.
Lon L. Fuller, The Morality of Law 33–94 (1964).
- 30.
Id. at 39.
- 31.
Hart, supra note 28, at 1285–1287. Others may argue that those who, in making law, try but fail to comply with these canons need not be morally at fault for their failures; and if this is so, then the canons cannot express moral requirements.
- 32.
Cf. Stephen Darwall, Authority and Reasons: Exclusionary and Second-Personal, 120 Ethics 257, 257–261 (2010) (discussing accountability).
- 33.
We set aside the question of whether it is a necessary or contingent truth that any norm that satisfies C also satisfies the demands of morality.
- 34.
My emphasis is on philosophical theories of concepts, for we can imagine a certain kind of sociological theory of a concept whose ambition is merely to describe existing use, or differences among existing usages in different cultures. My claim that all theories are normative in this sense is confined to philosophical theories.
- 35.
L.W. Sumner, Welfare, Happiness, and Ethics 10–20 (1996).
- 36.
It is common in philosophy to refer to the project of providing an analysis of a normative concept as metaethics. So to give an account of the nature of a normative predicate like ‘good’ or ‘desirable’ is not to determine which things are good or desirable. Thus, the view on which to say that something is ‘desirable’ or ‘valuable’ is to say no more than that ‘there are reasons to desire or to value it’ is a view that offers at least a partial account of those predicates. It is not to determine which things in the world are desirable or valuable. A theory whose aim is to provide criteria for determining which things, if any, are desirable or valuable is a normative, not a metaethical, theory.
- 37.
Dworkin refers to concepts in which the ascription of value is essential to their analysis as “interpretive concepts.” See, e.g., Dworkin, Law’s Empire, supra note 8, at 49.
- 38.
See, e.g., T.M. Scanlon, What We Owe to Each Other 97 (1998) (attributing this view to G.E. Moore); Pekka Väyrynen, Resisting the Buck-Passing Account of Value, in 1 Oxford Studies in Metaethics 295–324 (Russ Shafer-Landa ed., 2006), available at http://www.personal.leeds.ac.uk/~phlpv/papers/buck.pdf; Wlodek Rabinowicz & Toni Rønnow-Rasmussen, The Strike of the Demon: On Fitting Pro-Attitudes and Value, 114 Ethics 391 (2004).
- 39.
See, e.g., Franz Brentano, The Origin of Our Knowledge of Right and Wrong 18–19 (Roderick M. Chisholm ed., Roderick M. Chisholm & Elizabeth H. Schneewind trans., Routledge & Kegan Paul 1969) (1889); Scanlon, supra note 38, at 97; Richard Brandt, Moral Valuation, 56 Ethics 106, 113 (1946).
- 40.
See Scanlon, supra note 38, at 96–98 (1998).
- 41.
Hart, supra note 7, at 18–25.
- 42.
Austin, supra note 6, at 13–33.
- 43.
See Hart, supra note 7, at 6–7 (arguing that treating laws as commands backed by threats collapses the distinction between being obligated and being obliged).
- 44.
See Tom Campbell, Prescriptive Legal Positivism: Law, Rights and Democracy (2004); Gerald J. Postema, Bentham and the Common Law Tradition 302–336 (1986); Jeremy Waldron, Law and Disagreement (1999).
- 45.
Nicos Stavropoulos, Objectivity in Law (1996); Greenberg, How Facts Make Law, supra note 8; Michael S. Moore, Legal Reality: A Naturalist Approach to Legal Ontology, 21 Law & Phil. 619 (2002); Stephen R. Perry, Hart’s Methodological Positivism, in Hart’s Postscript 311 (Jules Coleman ed., 2001).
- 46.
Hart, supra note 7, at vi.
- 47.
See Dworkin, Law’s Empire, supra note 8. It is worth noting that the standard understanding of that method in which ‘fit’ and ‘value’ are taken to be not only distinct standards an interpretation must satisfy, but independent standards as well, is mistaken. For the features of law that must fit together are, in fact, partially determined by the value ascribed to law, and so, fit and value are not wholly independent. And it is certainly not true that first one applies the criterion of fit and then the criterion of value. Quite the opposite is the case. In any event, given our current purposes, the important point is that an inquiry into the nature of law proceeds through substantive political theory in the form of an account of the conditions that justify political coercion.
- 48.
Raz, supra note 17, at 28–33.
- 49.
Joseph Raz, The Morality of Freedom 76–80 (1986).
- 50.
Joseph Raz, Authority, Law and Morality, 68 Monist 295, 301 (1985).
- 51.
Coercion can be justified in the absence of authority. And authority (in my view) is essential to law in a way in which coercion (for all its importance) is not. These are points that to his credit Raz has long emphasized and exploited.
- 52.
There are many definitions of supervenience. Supervenience is a ‘dependence relationship’. A supervenes upon B implies that A depends on B. Supervenience is a distinctive kind of dependence relationship that for our purposes we will characterize as: A supervenes upon B if and only if there can be no change in A without a corresponding change in B.
- 53.
Thus the view that what the U.S. Constitution requires or permits is determined not only by what the Framers said and did and what judges and Justices since the Founding have said and done, but also by how it is received within the community as a whole—what Robert Post calls the “constitutional culture”—falls into the first category. See Robert C. Post, The Supreme Court, 2002 Term—Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4, 8 (2003). A view that holds that what the law requires depends on what individuals believe is just or fair to demand of one another is also a view of the first sort. The view that the content of the law depends on what is in fact just or fair, right or wrong, etc., represents a view of the second sort.
- 54.
Coleman, supra note 2.
- 55.
We will have occasion below to reconsider these characterizations and to make significant changes. The argument below is not impacted by whatever modifications in characterizing these notions we ultimately come to.
- 56.
Joseph Raz, Incorporation by Law, 10 Legal Theory 1, 2 (2004).
- 57.
In conversation, Alex Sarch has suggested a possible response to the Razian argument that I will not pursue in this paper, but that needs to be addressed more fully at some point. His argument is this:
Against inclusive legal positivism (ILP), Raz in effect argues that: (1) If ILP is true, then in the absence of a practice among officials of ‘incorporating’ morality into law, moral considerations would not apply to them (i.e., would not constrain judges’ legal decisions). (2) But moral considerations do apply to judges (since “judges are people too”). (3) Therefore, ILP is not true.
Sarch suggests that a proponent of ILP might respond to this argument by rejecting premise (1). Perhaps he could say that even if there were no practice of incorporation, morality would still apply to judges, except that the (moral) reasons he would have to decide this way or that would be different, i.e., different from they would be had a practice of incorporation existed. Regardless of whether there is a practice of incorporation or not, morality would still direct judges to do their duty, i.e., to vigilantly and indifferently apply the law as given. The only difference is that without a practice of incorporation, the law to be applied would not contain moral tests, while with such a practice, the law to be applied would contain such tests. Thus, whether or not there is a practice of incorporation, morality would still “apply” to judges; i.e., it would direct them to do their duty and apply the law as given. It is just that the content of the law to be applied would be different depending on whether a practice of incorporation exists.
- 58.
Joseph Raz, Authority and Justification, 14 Phil. & Pub. Aff. 3, 18–19 (1985) (emphasis omitted).
- 59.
For doubts about both its validity and soundness, see, for example, Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (2001). For doubts about its soundness, see, for example, Darwall, supra note 32; Scott Hershovitz, The Role of Authority, Philosopher’s Imprint, Mar. 2011, at 1; and Scott Hershovitz, The Authority of Law, in Routledge Companion to Philosophy of Law (Andrei Marmor ed., forthcoming 2011).
- 60.
We take up below the question of whether this renders Raz a normativist and not a positivist.
- 61.
One does not reach positivism by adopting the separability thesis. If anything, one is drawn to exclusive legal positivism only by rejecting the broadest forms of the separability thesis. It is no wonder that so many have missed this deep and important point caught in the grasp of the conventional wisdom, which would have us believe instead that nothing is more central to legal positivism than the separability thesis.
- 62.
Shapiro, supra note 23.
- 63.
See id.; Scott J. Shapiro, Was Inclusive Legal Positivism Founded on a Mistake?, 22 Ratio Juris 326 (2009).
- 64.
Alternatively, one might defend the view that moral facts are among the determinants of the content of the law. This rejects exclusive legal positivism, but then defends inclusive legal positivism as a better account of the way that normative facts figure in legal judgments. I am grateful to Scott Hershovitz for this suggestion, which he takes to be a more promising way of defending inclusive legal positivism. As we shall see below, I find none of these approaches ultimately persuasive because, on my reading, inclusive legal positivism is not an alternative or competitor to either natural law or to exclusive legal positivism. It has a different logical object. It answers a different set of questions. It purports to play a different philosophical role. In short, the view I defend here is that virtually everyone (including me) has mischaracterized the relationship between inclusive legal positivism and other theories—understood as accounts of the metaphysics of legal content.
- 65.
And not just the inclusive legal positivist either. It is not enough for the natural lawyer to agree with the exclusive legal positivist that law and morality are necessarily connected and then to distinguish between different ways in which they are. If the argument in Part IV is sound, the natural lawyer’s claim that the law must be transparent or translucent to the principles that justify it cannot be sustained. This does not mean that natural law theory is unavailable. If the argument in Part IV is sound, the forms of natural law theory that are available must accept the sources thesis.
- 66.
I have also argued, notably in The Practice of Principle, that some versions of the argument are not valid—namely, that its conclusion does not follow even granting its premises. Roughly, the idea is this: even if appealing to the moral principles that would justify a directive would vitiate the claim to authority, it does not follow that appealing to other moral principles or facts would; and so it does not follow that all appeals to moral principles or facts to determine law’s content or identity are inconsistent with law’s claim to authority. See Coleman, supra note 59, at 103–119.
- 67.
Raz, supra note 49, at 55–56.
- 68.
My interpretation is that the Razian account is a revisionist account of authority. As I see it, his deep point is that when it comes to reason, no one has a status authority over anyone else. There are just reasons that apply to persons and the only ‘status’ anyone has with respect to anyone else is a matter of competence—capacities for judging or executing what reason requires. There is no place for a status- as opposed to a competence-based notion of authority.
- 69.
For an excellent discussion of precisely this issue, see Greenberg, How Facts Make Law, supra note 8.
- 70.
The discussion that follows is more demanding and requires more careful attention than any of the arguments to this point. I wish I could make it easier and more enjoyable to read, but it is more important that it be precise than that it be fun to read.
- 71.
Still, however precise and technical the discussion in this and subsequent sections is, it necessarily remains partial and incomplete. In addition to setting aside the two biggest questions—whether the right metaphysical relationship is supervenience and how it is that facts come to make legal facts—we do not take up a wide range of other equally interesting and important issues: for example, whether social facts can also be normative; whether normative or moral facts are basic or whether instead they supervene on other facts—in particular, social facts; whether normative facts are reducible to social facts; and so on. Even setting these matters aside for now, there remains much work to do.
- 72.
The view that only social facts contribute to legal content is the sources thesis. The question is whether the sources thesis is best represented as (1) or as (4), or better, whether those who endorse the sources thesis endorse (1) or (4). The argument for the sources thesis in Part IV purports to demonstrate that it is a necessary implication of the premises and so it is reasonable to suppose that those who endorse the sources thesis endorse (4), not (1). Similar questions arise regarding (2) and (5), and (3) and (6).
- 73.
Depending on how one thinks of natural law, a natural lawyer could adopt (1) or (4) as regards legal content. That is, one could in principle hold that the law depends only on what people say and do and yet claim that there are some necessary connections between law and morality. So, in fact, it is just not helpful at all to think that what we are doing is merely recharacterizing the conventional disputes between positivists and natural lawyers in terms of differences about the sources of legal content. We are doing something else altogether, as the remainder of this discussion makes very clear.
- 74.
Coleman, supra note 2.
- 75.
Much of the argument that follows was stimulated by a discussion with David Plunkett. I have no idea if he would agree with the claims I make in this section, but our discussion stimulated me to stake out the theses that are presented here.
- 76.
I have explored this issue in great detail as regards ‘law’ in another paper, and I will not rehearse the arguments of that paper here. See Jules L. Coleman & Ori Simchen, “Law,” 9 Legal Theory 1 (2003).
- 77.
For this point, I am grateful to Ori Simchen, who provides a way of making the same point when it comes to the case of legal content directly. Suppose (7) is true. It so happens as a matter of mere contingency that social facts alone fix which facts are to contribute to legal content: say that it is social facts belonging to some clearly demarcated class C of facts and that nothing more is thus determined—as a matter of mere contingency again—to be whatever is to determine legal content. It seems not so implausible to me to suppose that this contingent determination of C as whatever determines legal content also thereby fixes the nature or essence of legal content. If so, then it will not be merely contingent that C is whatever determines legal content—it will be necessary given the nature of legal content.
- 78.
The distinction I am emphasizing between the determinants of legal content and the determinants of the determinants of legal content invites two possible objections. The first is that the determination relationship is transitive and so the determinants of the determinants of legal content are themselves determinants of legal content. So the distinction collapses. The second objection takes the opposite tack. If the determinants of legal content have determinants, then so, too, do those determinants, ad inf.nitum. The second objection is in a form that does not lead to a serious objection. Whenever one claims that A is a ground of B, it is possible to ask what is a ground of A? So what?
In principle, the first objection is more interesting—at least at first blush. If being a shade of red determines something’s being red, and its being red determines that it is a color, then it is true that its being a shade of red determines that something has a color. But this is a different kind of relationship, which is transitive; it is the relationship of greater specificity (being a shade of red) to lesser specificity (being red) to even lesser specificity (being a color). That is not the relationship we are after. The relationship between the first- and second-order determinants of legal content is a metaphysical notion of being a ground (or being the explanation) and this relationship is not transitive. Again, I am grateful to Ori Simchen for clarification of the relevant distinctions.
- 79.
The reader should note that I am not defending any of these arguments. I am merely identifying the kinds of arguments that would bear on answering these kinds of questions.
- 80.
See Raz, supra note 17, at 28–33, and accompanying text.
- 81.
See Shapiro, supra note 23; see also supra text accompanying note 62.
- 82.
Remember, on my reading, which Hart himself accepts in the postscript to the second edition of the Concept of Law, (3) holds because of the rule of recognition, which is an instance of (7); further, the rule of recognition is a feature of the concept of law—an essential feature of law—which means that (3) ultimately derives from (11). Cf. Hart, supra note 7, at 265 and n.59.
- 83.
One need not understand these statements as expressing moral oughts or obligations in order for the problem to arise. It is enough that they are normative in any sense.
- 84.
See David Hume, A Treatise of Human Nature, bk. III, pt. 1, § 1, at 456–470 (L.A. Selby-Bigge ed., Oxford Univ. Press 1978) (1740).
- 85.
In fact, the issue can be generalized and extended. The same problem arises for those who satisfy themselves thinking that law only creates ‘legal’ reasons and not moral reasons. After all, the issue is how commanding, asserting, and directing creates any sort of reason for acting, moral or otherwise.
- 86.
Hart, Shapiro, and I are among those who emphasize the sociality of law—Hart in emphasizing social rules, Shapiro in emphasizing plans, and I in emphasizing law’s conventionality.
- 87.
Shapiro, supra note 23, at 118–233.
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Coleman, J.L. (2013). The Architecture of Jurisprudence. In: Ferrer Beltrán, J., Moreso, J., Papayannis, D. (eds) Neutrality and Theory of Law. Law and Philosophy Library, vol 106. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-6067-7_5
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