— Philosophy and Law —
— APA Newsletter, Spring 2006, Volume 05, Number 2 —
APA NEWSLETTER ON
Philosophy and Law
John Arthur & Steven Scalet, Co-Editors Spring 2006 Volume 05, Number 2
— 2 —
— 3 —
FROM THE EDITORS
John Arthur
Binghamton University
Steven Scalet
Binghamton University
We are pleased to take over from Ted Benditt as co-editors of the Newsletter on Philosophy of Law. Ted has done a superb job, and we are sure we speak for the many readers of the Newsletter in expressing our thanks to Ted. We only hope that we can continue in the tradition he has established.
Our plan is to follow his lead and devote each Newsletter to a single theme or, in some cases, a particular philosopher. The next edition will be devoted to articles on Joel Feinberg. We hope in the future to include responses to articles by the subject of the articles, as well as short book reviews and abstracts of articles that are of particular interest.
Finally, we’d like to thank the guest editor of this edition, Ken Himma. We think that the four articles make a real contribution to the on-going debates about positivism and want to express our gratitude to him as well as to the authors.
ARTICLES
Introduction: Unresolved Problems for Legal Positivism
Kenneth Einar Himma
Seattle Pacific University
It is fair to say that, at this point in time, legal positivism has achieved theoretical ascendancy among legal theorists. Neo-classical natural law theorists, like John Finnis and Mark Murphy, deny the view of William Blackstone and Thomas Aquinas that an unjust norm cannot, as a conceptual matter, count as a “law” and hence accept the positivist’s view of law as a social artifact. While many positivists (including myself) regard the seminal work of Ronald Dworkin as utterly crucial to understanding legal practice in Anglo-American legal systems (especially the practices of judges), Dworkin’s view that the law of any system is, as a matter of conceptual necessity, determined by the moral norms that show that system in its best moral light has few contemporary defenders.
In this connection, it is especially worth noting that the way in which the substantive rules and principles of law are taught in the law schools presupposes that the core tenets of legal positivism are. In every casebook that I have ever seen, the properly promulgated utterances of courts and legislatures are taught as having the status of “law” without regard to whether those utterances conform to moral norms or succeed in showing existing legal practice in its most favorable moral light (i.e., succeed in justifying the exercise of the state’s coercive power against citizens). Those latter concerns are treated as extrinsic to the question of whether something counts as law. Mainstream pedagogy in law school transparently presupposes that law is a social artifact manufactured by courts and legislatures according to norms that are contingent in character; in consequence, what law is and what law ought to be are, as far as this pedagogy is concerned, two distinct questions.
None of this, of course, implies that legal positivism is the correct theory of law. The empirical fact that most theorists and teachers of law explicitly or implicitly accept a view about law does not imply that the view is correct. Indeed, it might very well turn out that some sort of conclusive refutation of positivism is right around the corner—although I would be quite surprised if someone produced such an argument.
Nor should the ascendancy of positivism be thought to imply that the story is complete. Natural law theorists continue to insist that a full understanding of the concept of law requires some reference to morality—even as they concede that the content of the law does not necessarily depend on whether it conforms to moral norms of any kind. And positivists themselves realize that there is much that must be done to fully understand law at a conceptual level and hence much that must be done if positivism is genuinely to prevail as a theory of law: again, it is one thing to win a consensus; it is another to be correct.
The essays in this section address some important unsolved problems in the conceptual theory of law from the perspective of legal positivism. In “The Conventions of a Legal Order,” Andrei Marmor explores the character of the norm that defines the criteria for what counts as law, considering both Hart’s view that it is conventional in character and Kelsen’s view that it is a political presupposition. In “Legal Positivism and ‘Explaining’ Normativity and Authority,” Brian Bix evaluates various positivist explanations of authority and argues that many are inconsistent with positivism’s core assumptions. In “Legal Positivism and Objectivity,” Matthew Kramer argues that a conception of objectivity as involving mind-independence is, contrary to the views of many positivists and anti-positivists alike, compatible with the positivist view that the criteria of legality are conventional in character. In “Positivism and the Problem of Explaining Legal Obligation,” I argue that legal positivism is missing a comprehensive theory of legal obligation that explains both the obligations of citizens and officials and that legal positivism cannot succeed without a plausible account of these obligations.
Marmor, Kramer, and Bix are three of the most influential legal theorists writing today on the concept of law. I am indebted to them for contributing to this issue of the Newsletter and am very honored to have an essay of mine appear alongside theirs.
The Conventions of a Legal Order
Andrei Marmor
University of Southern California School of Law and Department of Philosophy
There is a widespread view amongst legal philosophers, particularly in the legal positivist tradition, that there are certain norms that determine what counts as law in any given legal system. There is also a famous disagreement about what kind of norms these are. Kelsen argued that a legal order can only make sense if one presupposes its Basic Norm, the norm that grants validity to the entire system.1 H. L. A. Hart, on the other hand, famously maintained that there is a Rule of Recognition that determines what counts as law in a given society. The Rule of Recognition is not a presupposition, however, but a social rule, or, as Hart later clarified, it is a social rule of a special kind, namely, a social convention.2 Both of these views are very similar in that they both claim that there is some kind of a Master Norm that determines what counts as law in any given legal order. The disagreement is about the nature of this Master Norm: Is it, as Kelsen argued, a practical presupposition or, as Hart would have it, a social convention? My aim here is (1) to clarify this disagreement, (2) to show that there are some difficulties with both positions, and finally (3) to argue that though Hart’s position is more promising, it is in need of much further development.
Consider the following sequence of propositions:
1: According to the law in Si (at time T1), it is the law that P.3
2: 1 is true because P has been enacted (prior to T1) by Q.4
Now 2 clearly presupposes something like 3—
3: If Q enacts a norm N in Si, N is legally valid in Si.
4: 3 is true in Si because it is generally the case that X.
There is a logical sequence here: if there is a doubt about a statement of type 1, we would normally expect it to be resolved by an account of type 2.5 And if there is a doubt about 2, we would expect it to be resolved by an account of type 3. And then we need an explanation of what makes 3 true, and so we get to 4. This much, I take it, is common ground. But now the question that needs to be answered is this: Why should we assume that 4 has to be grounded in pointing to norms? Why could it not be something else?
Kelsen had a detailed answer to this question.6 The law, according to Kelsen, is first and foremost a system of norms. Norms are “ought” statements, prescribing certain modes of conduct. Unlike moral norms, however, Kelsen maintained that legal norms are created by acts of will. They are products of deliberate human action. For instance, some people gather in a hall, speak, raise their hands, count them, and promulgate a string of words. These are actions and events taking place at a specific time and space. To say that what we have described here is the enactment of a law is to interpret these actions and events by ascribing a normative significance to them. Kelsen, however, firmly believed in Hume’s distinction between “is” and “ought,” and in the impossibility of deriving “ought” conclusions from factual premises alone. Thus Kelsen believed that the law, which is comprised of norms or “ought” statements, cannot be reduced to those natural actions and events that give rise to it. The gathering, speaking, and raising of hands, in itself, is not the law; legal norms are essentially “ought” statements, and, as such, they cannot be deduced from factual premises alone.
How is it possible, then, to ascribe an “ought” to those actions and events that purport to create legal norms? Kelsen’s reply is enchantingly simple: we ascribe a legal ought to such norm-creating acts by, ultimately, presupposing it. Since “ought” cannot be derived from “is,” and since legal norms are essentially “ought” statements, there must be some kind of an “ought” presupposition at the background, rendering the normativity of law intelligible.
What makes it the case, then, that a particular act of will is interpreted as an act that creates a legal norm? An act can create law, Kelsen argues, if it is in accord with another, “higher” legal norm that authorizes its creation in that way. And the “higher” legal norm, in turn, is legally valid only if it has been created in accordance with yet another even “higher” legal norm that authorizes its enactment. Ultimately, Kelsen argued, one must reach a point where the authorizing norm is no longer the product of an act of will but is simply presupposed, and this is what Kelsen called the Basic Norm.7
According to Kelsen, then, it is necessarily the case that an explanation of type 4 must point to a master norm that makes it the case that certain acts of will create law and others don’t. Without assuming such a norm, the normativity of the entire legal order remains unexplained. H. L. A. Hart seems to have concurred, with one crucial caveat: the master norm is not a presupposition, as Kelsen would have it, but a social norm, a social convention that people (mostly judges and other officials) actually follow. This is what the Rule of Recognition is: the social rule that a community follows, a social rule that grounds the answer to the question of what makes statements of type 3 true or false in that particular society.8
But now, if you take Kelsen’s question seriously, you should be puzzled by this. How can a social fact, that people actually follow a certain rule, be a relevant answer to Kelsen’s question of what makes it the case that certain acts of will create the law and others don’t? Crudely put, if you start with the question of how can an “is” generate an “ought,” you cannot expect an answer to it by pointing to another “is.” Has Hart failed to see this? Yes and no. Consider, for example, the game of chess. The rules of the game prescribe, for instance, that the bishop can only be moved diagonally. Thus, when players move the bishop, they follow a rule. The rule is, undoubtedly, an “ought”; it prescribes permissible and impermissible moves in the game. What is it, then, that determines this “ought” about rules of chess? Is it not simply the fact that this is how the game is played? The game is constituted by rules or conventions. Those rules are, in a clear sense, social rules that people follow in playing this particular game. The rules of chess have a dual function: they constitute what the game is, and they prescribe norms that players ought to follow.9 Similarly, Hart seems to have claimed, the Rules of Recognition define or constitute what law in a certain society is, and they prescribe (that is, authorize) modes of creating law in that society. Social rules can determine their ought, as it were, by being followed by a certain community, just as the rules of chess determine their “ought” within the game that is actually followed by the relevant community.
This cannot be so simple, however. In fact, the complications go both ways. Something seems to be missing from Hart’s account, but something is missing from Kelsen’s account as well. Let me begin with Hart. The obvious difficulty with the chess analogy is that the rules of the game are “ought” statements only for those who actually decide to play this particular game. To the extent that there is any normative aspect to the rules of chess, it is a conditional one: if you want to play chess, these are the rules that you need to follow. But of course, you don’t have to play at all, nor do you have to play this particular game. Leslie Green was one of those who observed this difficulty in Hart’s account of the Rule of Recognition. As he put it, “Hart’s view that the fundamental rules [of recognition] are ‘mere conventions’ continues to sit uneasily with any notion of obligation,” and, thus, with the intuition that the Rule of Recognition points to the sources of law that “judges are legally bound to apply.”10
Green is wrong to focus the problem, however, on the notion of legal obligations. Hart’s account of legal obligations is sound as is. The Rule of Recognition, just like the rules of chess, determines what the practice is. There is no particular difficulty in realizing that such rules have a dual function: they both determine what constitutes the practice and prescribe modes of conduct within it. The legal obligation to follow the Rule of Recognition is just like the chess players’ obligation to move the bishop diagonally. Both are prescribed by the rules of the game. What such rules cannot prescribe, however, is an “ought” about playing the game to begin with. But that is true of the law as well. If there is an ought to play the game, so to speak, then this ought cannot be expected to come from the rules of recognition. The obligation to play by the rules, that is, to follow the law, if there is one, must come from moral and political considerations. The reasons for following the law cannot be derived from the norms that determine what the law is.
But now one should wonder whether we have contradicted Kelsen at all. Have we not just conceded that the normativity of law, like that of any other conventional practice, has to be presupposed? When a couple of people sit down to play chess, they just presuppose that the rules of chess are those they are obliged to follow. In playing chess, they presuppose its normativity. And in “playing by the law,” lawyers, judges, and other participants presuppose the normativity of the legal order. This is basically what the concept of the Basic Norm is supposed to capture: the underlying presupposition of the normativity of the relevant practice. Is there anything more to it than a presupposition?
The problem is that even on Kelsen’s own account, one can see that there must be more to it than a presupposition. Why is that? Because the specific content of any particular Basic Norm is crucially determined by actual practice. As Kelsen himself repeatedly argued, a successful revolution brings about a radical change in the content of the Basic Norm. Suppose, for example, that in a given legal system the Basic Norm is that the constitution enacted by Rex One is binding. At a certain point, a coup d’etat takes place and a republican government is successfully installed. At this point, Kelsen admits, “one presupposes a new basic norm, no longer the basic norm delegating law making authority to the monarch, but a basic norm delegating authority to the revolutionary government.”11
Has Kelsen violated his own categorical injunction against deriving “ought” from “is” here?12 The answer depends on how we construe the explanatory function of the Basic Norm: neither Kelsen nor his critics seem to have been careful to distinguish between the role of the Basic Norm in answering the question of how we identify the law as such, and in answering the question of law’s normativity. An answer to the question of what counts as law or as law creating acts in a particular community cannot be detached from practice, namely, social conventions. As Kelsen himself basically realized, it is the actual practice of judges and other officials that ultimately determines what counts as law in their society. On the other hand, Kelsen seems to be right to insist that social conventions, by themselves, cannot explain the “ought” that is associated with the law as a normative system. Such an “ought” cannot be constituted by the conventions. Social conventions can only determine what the practice is and how one would go about in engaging in it; conventions cannot determine that one ought to engage in the practice.
So perhaps contrary to first impression, Hart’s Rule of Recognition and Kelsen’s Basic Norm are not really competing accounts of the same thing. Perhaps these two types of Master Norm do not answer the same question. The Rule of Recognition, as a social convention, determines what the law in a given community is. By pointing to the Rule of Recognition, one answers the question: What counts as law in this community? Whereas the Basic Norm is an account of law’s normativity. By pointing to the Basic Norm, one answers the question: What makes these actions and events normatively significant? In other words, we seem to have two separate accounts here: the normativity of law has to be presupposed. The identification of law, the answer to the question of what counts as law in any given community, is determined by practice, by the conventions that prevail in the relevant community.
Whether there are rules of recognition is basically a matter of observation, not something that can be determined by abstract argument. Nevertheless, there is a lesson to be learned from the failure of Kelsen’s anti-reductionism. The idea of the Basic Norm was intended by Kelsen to avoid a reduction of legal validity to social facts, precisely of the kind that Hart later suggested in the form of the Rule of Recognition. Kelsen thought that he could avoid such reductionism by insisting that the Basic Norm is a presupposition, not a social norm. But as we have seen, Kelsen’s account of the Basic Norm actually violates his own anti-reductionist aspirations. Even if, in certain respects, the Basic Norm is a presupposition, its content is always determined by practice. The Basic Norm of, say, the U.S. legal system, and that of the U.K., differ precisely because judges and other officials actually apply different criteria in determining what the laws in their respective legal systems are. The content of the Basic Norm is entirely practice-dependent. Once we see that this practice is rule governed, namely, that in applying the criteria for determining what the law is in their legal systems, judges and other officials follow certain rules, it becomes very difficult to deny that there are rules of recognition, more or less along the lines suggested by Hart.13
Two questions remain: What kind of norms the Rules of Recognition are, and to what extent those rules shape our understanding of what the law is. A widely held view, reinforced by Hart’s comments in his Postscript to The Concept of Law, maintains that the rules of recognition are social conventions, more or less along the lines of David Lewis’s analysis of coordination conventions.14 Lewis claimed that conventions are social rules that emerge as practical solutions to wide-scale, recurrent, coordination problems. A coordination problem arises when several agents have a particular structure of preferences with respect to their mutual modes of conduct: namely, that between several alternatives of conduct open to them in a given set of circumstances, each and every agent has a stronger preference to act in concert with the other agents than his own preference for acting upon any one of the particular alternatives. Most coordination problems are easily solved by simple agreements between the agents to act upon one, more or less arbitrarily chosen alternative, thus securing concerted action amongst them. However, when a particular coordination problem is recurrent and agreement is difficult to obtain (mostly because of the large number of agents involved), a social rule is very likely to emerge, and this rule is a convention. Conventions, in other words, emerge as solutions to recurrent coordination problems, not as a result of an agreement but as an alternative to such an agreement, precisely in those cases where agreements are difficult or impossible to obtain.
I doubt, however, that the rules of recognition are coordination conventions. Let’s consider a concrete example, say, the rules of recognition of the U.S. legal system. There are two main rules of recognition in the United States: the convention that settles on the supremacy of the U.S. Constitution, and the convention that determines the system of common law in the United States.15 There is a long and complex history that lies behind these two main rules of recognition in the United States. Neither looks like a rule that is there to solve a coordination problem. The convention about the supremacy of the U.S. Constitution manifests a deeply entrenched political ideology that epitomizes important aspects of the United States’ social and political history. It is an ideology that people feel proud of and fight to defend. People do not fight to defend their coordination conventions. In other words, rules of recognition are politically important, and this political importance is difficult to reconcile with the idea that such rules are there to solve a coordination problem.
If rules of recognition are politically important, does it not undermine the idea that such rules are conventions at all? Not necessarily. Consider natural language, for example. A vernacular is, undoubtedly, conventional in some profound ways and is widely recognized as such. Nevertheless, people often feel proud of their vernacular and certainly think that it has cultural and other values worth preserving. There are two ways in which social conventions can be valuable. First, there may be values in having the conventions, and second, there may be values constituted by the conventions. Let me explain.
There are many reasons for having conventional rules. Solving a recurrent coordination problem is only one of such reasons. Others are more directly related to specific social, moral, or political needs and values. Consider, for instance, the idea of respect. We have good reasons to respect others, and, crucially, often we have good reasons to demonstrate respect in a socially recognized way. Different cultures have different conceptions of what respect is, when it is due, and when it is important to show respect in socially recognized ways. Hence, different cultures have different conventions that determine ways in which respect to others needs to be demonstrated and how. Some natural languages, for example, have elaborate grammatical structures that constitute different ways in which a person should address another, according to various social requirements and expectations about the kind of respect that needs to be shown in various circumstances.16 We need not assume, of course, that the various values and conceptions of respect that are instantiated by such vernaculars are necessarily good and worthy of appreciation. Some of them may be pointless or plain wrong. There are two points, however, that need to be noticed: first, that social conventions often emerge as a response to social needs, and in responding to such needs they can be valuable. Conventions serve a wide variety of values by constituting ways in which people interact with each other, linguistically and otherwise. Second, it would be a huge simplification to assume that all the social needs that engender conventional solutions are coordination problems. Social life is much more complex than that. A complex cultural construction of respect instantiates a wide range of values and social functions. Social conventions tend to develop as responses to such needs, shaping social behavior in appropriate ways. The rules of recognition are no exception. They instantiate complex responses to complex social and political needs. Some of those needs are more or less universal, while others are local and specific to the social political history of the particular society in which they evolve.
Furthermore, as I have argued at length elsewhere,17 once a conventional practice evolves, the conventions that constitute the practice often constitute some of the specific values inherent in the practice. In other words, even if social conventions tend to emerge as responses to some antecedent needs, once the conventions emerge, they often constitute further values that could not be realized without the conventional setting that is already in place.
Realizing that the rules of recognition are not necessarily, or even typically, coordination conventions should make it easier to see that rules of recognition tend to instantiate a deeper layer of conventions about what the law is. Consider the analogy of respect again. As we noted, there are certain reasons to show respect for people under various circumstances. And there are sometimes reasons to show respect in socially recognized or even (partly) institutionalized ways. This is what gives rise to the emergence of deep conventions about respect that are manifest in the surface conventions that determine specific ways of showing respect in particular contexts. Similarly, I want to suggest, there are deep conventions that determine what counts as law and a legal order, conventions that are manifest in the surface conventions of recognition of particular legal systems at any given time and place. In other words, I would suggest that between the general reasons to have law, and the particular rules of recognition of a specific legal system, there is an intermediary layer of conventions that determine what the law is, the deep conventions that are instantiated by the surface conventions of recognition. What are those deep conventions?
Consider these three (hugely simplified) possible models of what the law is. According to one familiar conception, law is a product of the act of will of particular individuals or institutions. Let me call this the institutional model of law. At least two other models, however, are familiar from history: the customary model and the religious one. According to the customary model, law is not created by acts of will but by long-standing social customs; roughly, law is just those norms that have been followed in the community for a long period of time. And then there is a third familiar model, which is basically religious: law is grounded on the interpretation of some holy scripture, like the Bible or the Quran.18 These three models instantiate very different conceptions of legal authority. They instantiate different conceptions of what the law is. As one should expect, they have a great deal in common. That is why they are different models of law; they form conventional solutions to similar problems and social needs. For example, the social needs to have political authority, to have mechanism for resolution of conflicts in society, to solve collective action problems, to produce public goods, and so forth. Let us assume that these and similar concerns constitute the basic reasons for having law and legal institutions in our societies. But these reasons, universal as the may be, can be instantiated by different types of deep conventions. According to the institutional model, the one that more or less prevailed in the modern world, law is the deliberate product of recognized and institutionalized authorities. According to religious models, law is the expressed will of God, not of human institutions. And then there were times and places where law was just a little bit of both of these, but mostly it consisted of the customs and traditions that have been followed for generations. These different models of law are the deep conventions I have in mind. As with any other type of deep conventions, they are actually practiced by their corresponding surface conventions of recognition that are particular to the specific society in question. For example, a religious conception of law must have certain surface conventions that determine what counts as the relevant holy scripture, the “expressed” will of God, who gets to determine its interpretation, and so forth. Similarly, a customary model must have some surface conventions of recognition about what counts as a legal custom as opposed to norms about etiquette or desirable but not obligatory behavior, who gets to resolve interpretative questions about such matters, who gets to apply them to particular conflicts, etc.
Needless to say, all this was a very sketchy account. A great deal more needs to be said on the kind of conventions the rules of recognition are, and even more needs to be explained about the idea of deep conventions. My purpose here was to point out that (1) there are considerable difficulties with an explanation of the rules of recognition in terms of coordination conventions and (2) that a more nuanced and complex theory of social conventions should be able to explain how conventions constitute, to some extent, the concept of law itself, and its particular shape in any given legal order. I tried to suggest that a distinction between deep and surface conventions may be such an avenue to explore, and I hope to do that in greater detail elsewhere.
Endnotes
1. See, for example, H. Kelsen, Pure Theory of Law, Knight trans. (UC Berkeley Press, 1967) or General Theory of Law and State (1945), Wedberg trans. (Russell & Russell, NY 1961). For a detailed bibliographical note on Kelsen’s writings in legal philosophy, see my entry on Pure Theory of Law in the Stanford Encyclopedia of Philosophy.
2. H. L. A. Hart, The Concept of Law (Oxford 1961), chapter 5. The conventional nature of the rules of recognition is in Hart’s Postscript, published posthumously in the 2nd ed. of The Concept of Law (Oxford, 1994).
3. Assume that “P” stands here for the following type of claim: ‘under circumstances Ci, A has a right/duty/power (etc...) to ,” where A is a defined class of legal entities, and is an action/omission type.
4. Assume that Q stands here for an individual or an institution.
5. Dworkin famously denies that this is the only type of answer to the question of what makes statements of type 1 true. (See R. Dworkin, The Model of Rules, in his Taking Rights Seriously, London, 1977.) But even Dworkin does not deny that a statement of type 2 can be, and often is, a perfectly adequate answer to the question of what makes 1 true.
6. See note 1 above.
7. More concretely, Kelsen maintained that in tracing back such a chain of validity, one would reach a point where a first historical constitution is the basic authorizing norm of the rest of the legal system, and the Basic Norm is the presupposition of the validity of that first constitution.
8. There is a separate question here, that I will largely ignore, whether it makes sense to assume that in each and every legal order there is only one master norm of the kind Hart and Kelsen had in mind. Arguably, legal systems are constituted by a multiplicity of such norms that do not necessarily form a neat hierarchical structure that can be subsumed under one master norm.
9. This dual function of constitutive rules has been noted by J. Searle. See his Speech Acts (Cambridge, 1969).
10. L. Green, “The concept of law revisited,” Michigan L Rev, 94 (1996): 1687, at 1697.
11. Pure Theory of Law, 1st ed., [Reine Rechtslehre, 1934], translated to English as Introduction to the Problems of Legal Theory, Paulson and Paulson trans. (Oxford 2002), 59.
12. Kelsen was not unaware of the difficulty. In the first edition of the Pure Theory of Law, he suggests the solution to this problem by introducing international law as the source of validity for changes in the basic norms of municipal legal systems. It follows from the basic norm of international law, Kelsen maintains, that state sovereignty is determined by successful control over a given territory. Therefore, the changes in the basic norm that stem from successful revolutions can be accounted for in legalistic terms, relying on the dogmas of international law (61-62). The price Kelsen had to pay for this solution, however, is rather high: he was compelled to claim that all municipal legal systems derive their validity from international law, and this entails that there is only one Basic Norm in the entire world, namely, the Basic Norm of public international law. Although this solution is repeated in the second edition of the Pure Theory of Law (214-15), Kelsen presented it there with much more hesitation, perhaps just as an option that would make sense. It is not quite clear whether Kelsen really adhered to it. The hesitation is understandable; after all, the idea that municipal legal systems derive their legal validity from international law would strike most jurists and legal historians as rather fanciful and anachronistic. (We should recall that the development of international law is a relatively recent phenomenon in the history of law.)
13. Famously, Dworkin denies precisely this; he denies that in identifying the law judges follow rules or conventions. Dworkin’s arguments are very complex, and I cannot deal with them here. I have argued against his position in some detail elsewhere. See my Positive Law and Objective Values (Oxford, 2001), chapter 1.
14. David Lewis. Convention: A Philosophical Study (Oxford, 1968); For my critique of Lewis’s account of social conventions, see Marmor, “On Convention,” Synthese, 107 (1996): 349. The thesis that the rules of recognition are coordination conventions has been endorsed, for example, by Jules Coleman. See his Practice of Principle….
15. Historically, in reverse order: first there was common law, and then the constitution imposed on it.
16. Hungarian is an extreme example: In Hungarian there are at least three or four ways of speaking that manifest different levels of respect the speaker is expected to manifest toward the hearer. These layers vary according to elaborate social conventions regarding degrees of acquaintance, social status, gender, etc.
17. Positive Law and Objective Values (Oxford 2001), chapter 1.
18. I am not claiming that these are the only models we are familiar with. There is, for example, something like a popular sovereignty model, instantiated to some extent in Soviet Russia, whereby the law is basically conceived of as “the will of the party.” And there may be others.
Legal Positivism and “Explaining” Normativity and Authority
Brian Bix
University of Minnesota
Introduction
Legal positivism is an approach to law that assumes or asserts that it is both possible and valuable to have a descriptive or conceptual theory of law, separated from any prescriptive claims about what the content of law ought to be.1 It is an approach to law that is both one example of analytical legal philosophy, in competition with others (e.g., Natural Law theory,2 or a Dworkinian approach3), and the paradigmatic form of the analytical approach. This paper will focus on those theorists who offer an “explanation” of authority or normativity as central to the project of legal positivism. This paper will emphasize that such “explanations” come in quite different forms, and some are more consistent with the legal positivist (and analytical legal theory) project than are others.
In particular, I will argue that certain purported explanations are inconsistent with the basic claims and purposes of legal positivism.
Analytical Approaches to Normativity and Authority
The difference between an analytical and a normative approach to law is well-illustrated by H. L. A. Hart’s classic work, The Concept of Law,4 which remains the paradigmatic work of analytical legal philosophy (and of legal positivism) for most contemporary scholars of English-language legal theory.5 For Hart, it is important that a theory of law take into account those who accept the law, i.e., those who treat it as giving them reasons for action (the internal point of view).6 However, it is also important for Hart that the theorist and the theory remain neutral on the question of whether such treatment of the legal system and its rules is morally justified.7
Hart’s analysis begins with the fact that some people treat the law as giving them reasons for action, without focusing on either the normative question of whether such treatment is objectively (morally) justified or the psychological question of why these people have this attitude toward the law.8 Similarly, Hans Kelsen’s well-known legal positivist analysis begins with the fact that some people view actions normatively, without focusing on whether such a view of official actions is justified.9 In these paradigmatic forms of legal positivism, one sees the basic project of this approach to legal theory: to see law as a distinct sort of social practice or institution to be studied descriptively, analytically, or conceptually.
However, because law is a social practice or institution that purports to give citizens (and officials) reasons for action, and it is viewed or used in that way by some of its participants, theorists must face the problem of giving a descriptive, analytical, or conceptual analysis of a normative practice, and the contrast between the neutral or scientific approach of the theorist and the normative, reason-giving nature of the object of study creates tensions and difficulties.
There are at least two quite distinct (if related and overlapping) senses of the terms “explaining [legal] normativity” and “explaining authority,” and one can find both senses exemplified in the literature. First, there is the analytical question: What is the nature of legal normativity or authority? Second, there is the evaluative question: Under what circumstances do people or institutions have authority, and under what circumstances do the actions or decisions of people or institutions create obligations?
This section will consider the analytical question. The following section will look at the evaluative question. Here is how Hart saw the analytical problem (as summarized by Gerald Postema):
Hart insists [that] the “standard normal form of descriptions of the content of Law” is that of statements in the normative vocabulary of “obligation,” “rights,” “powers,” and the like. The problem of explaining the normativity of law, he suggests, is…that of explaining the possibility of this characteristic use of normative language, while remaining faithful to the separation thesis.10
Consider also the following helpful summary by Jules Coleman:
In saying that law is normative, one is saying that the language of the law is the language of obligation, right, duty, privilege, and so on. An account of the law’s normativity must at a minimum make this fact about law intelligible. In claiming that the language of law is the language of “ought,” one is not thereby committed to a certain view of the nature of the legal “ought”; nothing about whether it is a moral “ought,” a prudential “ought,” or some other kind altogether. One illuminating way to read Hart’s objection to Austin is to see him as claiming that Austin’s theory—which reduces law to power, habit, and command—lacks the resources to make intelligible the appropriateness of the normative vocabulary of the law; that it lacks the resources to make out distinctions that are central to legal practice, for example, between being obligated and being obliged.11
Thus, there are important analytical questions to be asked regarding what the normative claims of and within law entail—in particular, what the connections are, if any, between legal normative claims and either factual claims or other sorts of normative claims (especially the claims of morality). For example, one might focus on obtaining a better (analytical) understanding on the role legal norms have, or purport to have, in practical reasoning. Here, both Hart and Joseph Raz have viewed law as giving, or purporting to give, content-independent, peremptory, and perhaps exclusionary reasons for action.12
On the relation between legal norms and facts, for Hart, it is because (some) citizens and officials treat legal norms as creating reasons for action (separate from whatever sanction may attach to the norms)—Hart’s internal point of view—that reduction to empirical terms does not succeed.13 In his responses, on one hand, to the early Utilitarian legal positivists, Jeremy Bentham and John Austin, and, on the other hand, to the Scandinavian legal realists, Hart consistently resisted the notion that propositions of or about law could be reduced to empirical claims (about the legislative will, the habit of obedience, the likelihood of punishment, the subjective feeling of empowerment, etc.).14 Most commentators have found Hart’s arguments here persuasive. The question of the relation between legal normativity and other forms of normativity has come to seem less susceptible to easy resolution.
The most common view in the literature appears to be that the law claims to create