Abstract
Legal philosophers have been preoccupied with specifying the differences between two systems of normative guidance that are omnipresent in all modern human societies: law and morality. Positivists propose a solution to this ‘Demarcation Problem’ according to which the legal validity of a norm cannot depend on its being morally valid, either in all or at least some possible legal systems. The proposed analysis purports to specify the essential and necessary features of law in virtue of which this is true. Yet, the concept of law is an ‘artefact concept’, that is, a concept that picks out a phenomenon that necessarily owes its existence to human activities intended to create it. Artefact concepts, even simple ones like ‘chair’, are notoriously resistant to analyses in terms of their essential attributes, precisely because they are hostages to human ends and purposes, and also cannot be individuated by their natural properties. Twentieth-century philosophy of science dealt with a kindred Demarcation Problem: how to demarcate epistemically reliable forms of inquiry from epistemically unreliable ones, that is, how to demarcate science from pseudo-science or nonsense. Like the legal philosophers, they sought to identify the essential properties of a human artefact (namely, science). They failed, and spectacularly so, which led some philosophers to wonder, ‘Why does solving the Demarcation Problem matter?’ This essay develops the lessons for legal philosophy from this episode and its philosophical aftermath, and concludes that, in order not to become embroiled in pointless Fullerian speculations about the effects of jurisprudential doctrines on behaviour, we should abandon the Demarcation Problem in jurisprudence.
Originally published at Oxford Journal of Legal Studies, (2011), pp. 1–15. The editors are grateful to Oxford Journal of Legal Studies for their permission to reprint this paper.
This paper owes its existence to a conversation with Larry Laudan many years ago. An earlier version benefitted from the discussion at the international conference on “Neutrality and the Theory of Law” at the University of Girona, May 20–22, 2010. I can recall particularly helpful questions or comments on that occasion from Eugenio Bulygin, Pierluigi Chiassoni, Luis Duarte D’Almeida, Dan Priel, Veronica Rodriguez-Blanco, Stefan Sciaraffa, and Scott Shapiro. I am also grateful to Frederick Schauer for written comments on that draft. The penultimate version was improved by astute criticisms of an anonymous referee for OJLS and by questions from an audience at the international conference on “The Nature of Law,” sponsored by McMaster University in Hamilton, Ontario on May 12–15, 2011; I can recall particularly helpful questions or comments on that occasion from Matthew Kramer, Mark Murphy, Giovanni Ratti, and Kevin Toh.
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- 1.
See Leslie Green, “Legal Positivism,” Stanford Encyclopedia of Philosophy (January 3, 2003), available at http://plato.stanford.edu/entries/legal-positivism/, for a recent clean statement of the view.
- 2.
Hans Kelsen, Pure Theory of Law, trans. Max Knight (Berkeley: University of California Press 1967), p. 1. Further citations are included by page number in the body of the text.
- 3.
H.L.A. Hart, The Concept of Law, 2nd ed. (Oxford: Clarendon Press 1994), p. vi. All further references will be included in the body of the text.
- 4.
Julie Dickson, Evaluation and Legal Theory (Oxford: Hart Publishing 2001), p. 17. Dickson faithfully follows Raz’s lead here, though he has not always been so immodest. Thus, in the earlier essay “Legal Positivism and the Sources of Law,” reprinted in his The Authority of Law, 2nd ed. (Oxford: Oxford University Press 2009), Raz notes that it is no part of the argument for the Sources Thesis “that a similar conception of legal systems is to be found in all cultures and in all periods.” Id. at 50. That is only one kind of theoretical modesty, for one might still think that it is possible to state necessary truths that explain the essential nature of a culturally and temporally bounded human practice; as noted in the text, our experience in the philosophy of science in the twentieth-century invites skepticism.
- 5.
Scott J. Shapiro, Legality (Cambridge, Mass.: Harvard University Press 2011), pp. 8–9.
- 6.
Id. at p. 9.
- 7.
Id.
- 8.
Human beings are not artifacts on this account, since they do not necessarily owe their existence to human action intended to create them.
- 9.
Finnis, after all, admits that positivism gives the correct account of “what any competent lawyer…would say are (or are not) intra-systematically valid laws, imposing ‘legal requirements.’” John Finnis, “On the Incoherence of Legal Positivism,” Notre Dame Law Review 75 (2000), p. 1611. Finnis complains instead that positivism does not have an adequate answer to questions it was not asking, such as when there is a moral obligation to obey the law. See the critical discussion in Brian Leiter, Naturalizing Jurisprudence (Oxford: Oxford University Press 2007), pp. 163–164, and also pp. 193–194.
- 10.
It might be objected that someone like Hart, who is more metaphysically cautious than, e.g., Dickson or Shapiro, only claims to be analyzing the concept of law used by someone familiar with the “modern municipal legal system.” Can we salvage the essentialist project with these kinds of temporal bounds? Perhaps so, but that is a question that can only be resolved a posteriori. The inductive case for skepticism developed below does not, in any case, depend on assuming that the account on offer is atemporal. Notice, of course, that this kind of move—deflating the ambitions of the analysis by bounding it temporally, perhaps culturally and geographically as well—makes mysterious the standard rhetoric of those committed to the Demarcation Problem. It also makes it puzzling why this is a philosophical topic, as opposed to an anthropological or sociological one.
- 11.
Larry Laudan, “The Demise of the Demarcation Problem,” in R.S. Cohen & L. Laudan (eds.), Physics, Philosophy and Psychoanalysis (Dordrecht: D. Reidel 1983). Cited hereafter by page number in the text.
- 12.
Other objections were raised to Popper’s falsificationism. Paul Feyerabend called attention to the commitment of natural scientists to theories some of whose predictions had actually been falsified. The so-called Duhem-Quine thesis about the underdetermination of theory by evidence suggests that no theoretical claim can ever be falsified, since there is always a choice, when confronted with recalcitrant evidence, to reject either the claim being tested or the background assumptions underlying the test. (Laudan, however, is a critic of the Duhem-Quine thesis: see, e.g., his Science and Relativism [Chicago: University of Chicago Press 1990].)
- 13.
See generally, Brian Leiter, “The Hermeneutics of Suspicion: Recovering Marx, Nietzsche, and Freud,” in B. Leiter (ed.), The Future for Philosophy (Oxford: Oxford University Press 2004).
- 14.
I focus on versions of positivism associated with Hart and his heirs.
- 15.
See Hart’s discussion in “The Postscript” to The Concept of Law, esp. pp. 250–254.
- 16.
Joseph Raz, “Authority, Law, and Morality,” reprinted in his Ethics in the Public Domain (Oxford: Oxford University Press 1994).
- 17.
Scott J. Shapiro, “On Hart’s Way Out,” Legal Theory 4 (1998), pp. 469–507.
- 18.
W.J. Waluchow, Inclusive Legal Positivism (Oxford: Oxford University Press 1994).
- 19.
I do not mean to deny that these writers also have a purely theoretical concern, i.e., figuring out what they take to be true of the concept of law. But since I am arguing that there is no reason to think this is a sensible theoretical project—unless ethnographically and temporally bounded in ways that are not obviously congenial to their original ambitions—it seems useful, following Laudan’s lead, to think about its import for practical reasoning.
- 20.
Some writers draw the connection explicitly: e.g., Shapiro says that “analytical jurisprudence [meaning a solution to the Demarcation Problem] has profound practical implications for the practice of law….” Legality, p. 25.
- 21.
See, e.g., Kevin Toh, “Hart’s Expressivism and his Benthamite Project,” Legal Theory 11 (2005), p. 115. See also, Kevin Toh, “Legal Judgments as the Plural Acceptance of Norms,” in Oxford Studies in the Philosophy of Law, Volume 1, ed. L. Green & B. Leiter (Oxford: Oxford University Press 2011).
- 22.
H.L.A. Hart, “Scandinavian Realism,” reprinted in Essays in Jurisprudence and Philosophy (Oxford: Oxford University Press 1983), p. 165.
- 23.
Id. at 167.
- 24.
I am also fairly confident (contra Quine’s naturalism, with its unprincipled commitment to psychological behaviorism even in the face of the a posteriori failure of that research program) that our best explanatory theory of the world will need to presuppose the reality of the mental states of persons, though it will not need to make explanatory appeal to moral norms. See my “Moral Facts and Best Explanations,” reprinted in Naturalizing Jurisprudence.
- 25.
See my, “In Praise of Realism (and Against ‘Nonsense’ Jurisprudence),” Georgetown Law Journal 100 (forthcoming 2012).
- 26.
“Positivism and Fidelity to Law—A Reply to Professor Hart,” Harvard Law Review 71 (1957), pp. 630–672. Further citations will be by page number in the body of the text.
- 27.
See, e.g., my “The Radicalism of Legal Positivism,” National Lawyers Guild Review 66 (2009), pp. 165–172.
- 28.
Not the mistake of misunderstanding legal positivism, but the mistake of thinking a certain legal theory (denominated “positivist”) constitutes the actual explanation for why Nazi judges did abhorrent things. (Thanks to Matt Kramer for clarification on this issue.)
- 29.
I am assuming, of course, that Fuller’s speculation is preposterous. That he adduced no actual evidence on its behalf is only one of many reasons for thinking it silly.
- 30.
This is explicit in Raz, Dickson, and Shapiro, and in Hart’s use of the language of “necessary and sufficient” conditions. Perhaps their ambitions, suitably deflated, survive the criticisms developed here.
- 31.
Cf. Shapiro, Legality, pp. 28–30.
- 32.
The hypothetical positivist here will get one extra question, to be sure: namely, does the law require the immoral decision? And that question could affect the practical reasoning of the positivist judge depending on her view of the moral weight of legal validity. But notice, then, that the extra question for the hypothetical positivist judge is also a moral one. In the end, it is hard to see how the overriding consideration could not be the seriousness of the moral inequity of the death penalty. (Thanks to an anonymous referee for pressing this issue.)
- 33.
See, e.g., “Hart’s Postscript” and “30 Years On” in Justice in Robes.
- 34.
See my “The End of Empire: Dworkin and Jurisprudence in the 21st Century,” Rutgers Law Juornal 36 (2004), esp. pp. 175–177.
- 35.
See, e.g., the useful survey piece by Mark Murphy on “Natural Law Theory,” in The Blackwell Guide to Philosophy of Law and Legal Theory, ed., M. Golding & W. Edmundson (Oxford: Blackwell 2005).
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Leiter, B. (2013). The Demarcation Problem in Jurisprudence: A New Case for Skepticism. 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_8
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