Brian Bix

For decades, if not centuries, discussions in Jurisprudence classes often start with the question, “What is Law?”  What then ensues is usually the bandying about of various conventional or off-the-wall definitions (depending on the tastes and inclinations of the teacher or coursebook editor), followed by a predictable reading and discussion of the 1958 Harvard Law Review debate between H. L. A. Hart and Lon Fuller, perhaps with some reference thrown in to Ronald Dworkin, or a natural law theorist (either very old, Thomas Aquinas, or more recent, say, John Finnis).  By then, it is considered safe to abandon discussions of the nature of law and go on to the next topic.

The problem with these discussions is that they skim across the surface of jurisprudential debates without ever reaching the core.  Courses may include debates about whether the Nazis had law or not, or whether we have a moral obligation to obey the law, but still there is little attention to all that is being assumed by any discussion of theorizing about (the nature of) law.  However, one should not be too quick to blame the teachers (or coursebook editors).  Even the theorists who wrote the canonical articles were not always clear, or helpful, about what is going on when theoretical claims are made.

Consider the complications:  in what sense is “law” a thing that can be described or explained?  If we are talking about a particular social practice, one that changes over time, why should we assume that anything true about that practice here and now will be equally true of the practice in another time or place?  Are we just listing things that are true of most legal systems, all known legal systems, or all possible legal systems?  Are the theory’s claims descriptive, analytical, interpretive, conceptual, or some combination of the above?

It is only in recent years that legal theorists have been more curious and more forthcoming about the methodological assumptions of their work, and potential methodological problems with their claims.  Joseph Raz’s article, “Can There Be a Theory of Law?” is an excellent example of a theorist facing such methodological issues.

Raz’s analysis is that theories about the nature of law are actually theories about the concept of law.  That analytical philosophy is, might be, or should be, conceptual analysis is nothing new (though conceptual analysis certainly has its critics, both in philosophy generally and in legal philosophy in particular); after all, the best-known text in English-language legal philosophy does carry the title The Concept of Law (H. L. A. Hart – Oxford U. Pr., 1961; rev. ed., 1994).

However, note for Hart that the expression is “the concept of law,” implying that there is a single concept, universally true, perhaps grounded in some Platonic realm.  Raz declares instead a focus on “our concept of law,” one parochial to us, though one we apply universally to other societies, present and past.  To say that it is our concept of law indicates that other societies might (and do) have other concepts, that our concept may have changed over time, and that it does not make sense to speak of the concept itself (as contrasted to our descriptions of the concept) being right or wrong.  For Raz, the point of theorizing about (our concept of) law is to explore a concept that is part of our general self-understanding.  And within Raz’s own theory of law, the self-understanding is one that shows connections between the concepts of “law” and “authority” and “practical reasoning” (among other connections).

Readers might reasonably react to all these references to conceptual analysis by asserting that we are not interested in a mere “concept;” we want to know something about “the practice itself,” in this case, law.  However, an initial question is how we determine what counts as “law”:  what is it that makes one system of guidance and dispute resolution “legal” and another not?   The initial and primary concern of a theory of (the nature of) law is boundary lines: what it is that makes a particular normative system legal.

Even assuming that Raz (and Hart, and others) are correct that the proper focus of legal theory is conceptual analysis (and, as earlier noted, there are doubters, including prominently, Brian Leiter, e.g., here (2007)), other questions remain that Raz’s article does not get to.  How can we tell whether “we” have one concept of law or more than one?  If there is more than one, should the theorist select just one, and if so, on what grounds should a selection be made?  Finally, if theories of law are just efforts to elaborate our concept(s) of law, why do theorists commonly act as if something more important is at stake?  Are they simply mistaken?

Raz’s article does not answer all the methodological questions, nor will the answers he does give be satisfactory to all, but it is an important step forward in the conversation, and an invaluable addition to the literature.