On (Not) Explaining Law’s Reason-Giving Power

David Enoch, Reason-Giving and the Law in Oxford Studies in Philosophy of Law, (Leslie Green & Brian Leiter, eds., Oxford University Press, 2011), also available at OUP Proofs.

A number of prominent legal positivists in recent years (including Jules Coleman and Scott Shapiro) have taken it as an urgent project – and have taken it as their project – to “explain law’s normativity.”  By that, they report that what needs to be explained is the way that law gives us reasons for action.  There is always something a little ironic when legal positivists try to explain the normativity of law, for it is generally considered to be foundational to that approach to law that it denies any necessary moral content to legal systems in general or valid legal norms in particular.

In “Reason-Giving and the Law,” David Enoch has worked as much to “deflate” the problem of law’s reason-giving as to resolve it. His basic point is that there is nothing that remarkable about the giving of reasons for action.

Enoch grounds his work on clarifications of the different ways of giving reasons for action, and how distinguishing among types of ways of giving reasons for action can help our analysis of the legal case.  First, someone may call our attention to a reason for action that already applies to us (what Enoch calls “epistemic” reason-giving).  For example, before I do something rash, you might remind me of my obligation to be a good role model to my child or to my students.  This reason was always present, and your reminding me did not in any way change the reasons for action that apply to me, but you effectively helped me to (re-)discover those already-existing reasons.

Second, certain changes in non-normative facts can trigger reasons that already apply to us.  Thus, the rise in the cost of some product can warrant our buying less of it, where the changed price is a non-normative fact, triggering our existing (“conditional”) reason to put limits on how much we spend.  It is not that the fact “created” the reason, in some way that violates the “is”/“ought” division; rather, the fact is just part of the premise, along with an “ought” premise (e.g., never spend so much that one does not have enough left to pay the rent) that was already there, but had not been invoked until the new fact was introduced.

Enoch contrasts those two forms of reason-giving, epistemic and triggering, with a possible third kind of reason-giving, which he calls “robust reason-giving.” Under this possible third kind, someone’s statements or actions do not simply remind us of existing reasons, or trigger the effect of existing reasons, but creates reasons that were not there before.   Many people believe (or assume) that requests and commands are “robust reasons” of this sort, and others ascribe the same status to promises or plans.

However, when Enoch investigated likely examples of robust reason-giving — like a request or a divine command — they seemed to be merely examples of triggering existing conditional reasons people already had (e.g., “if a friend asks you to help her on a small task, you should do so”).  Nonetheless, Enoch argued, robust reason-giving might yet be considered a special sub-category of triggering reasons, with the following characteristics:  in an interaction between A & B, A must have specific intentions to create reasons for B, and B must recognize and be responding to those intentions. (Pp. 5-14.)

In the course of considering whether law gives us “robust reasons,” Enoch notes that we must distinguish normative reasons from motivating reasons. (P. 15.)  Motivating reasons are part of a certain kind of causal explanation:  it is explains why we decided to do what we did – a psychological or historical claim.  Normative reasons are reasons that justify an action, that make it the right or rational thing to do.   As noted earlier, when we are concerned philosophically with whether law gives us reasons for action, our focus is properly on the normative reasons, not motivating reasons.

After all this stage-setting, Enoch comes to a radically modest conclusion – “radically” modest, because it is in contrast to the stronger conclusions that many other theorists have reached, or even merely assumed.  He sees no basis for assuming that law always (or “necessarily”) gives reasons for action (other than “legal reasons for action”).  He views the notion that law would always give reasons for action as “clearly false.” (P. 20.)  Indeed, such a view does seem contrary to most people’s basic intuitions.  We do not think that legal rules always direct (the most) moral action, even if we constrict our focus to the legal rules of generally just legal systems.  And most of us have no trouble coming up with examples of legal systems – even “generally just” legal systems – issuing rules that were in some way contrary to what morality required.  At most, Enoch concludes, law sometimes gives reasons for action, as would be expected from normal triggering reasons – “the giving of the reason amounts to a manipulation of the non-normative circumstances in a way that triggers a preexisting conditional reason.” (P. 26.)

In summary, Enoch shows that there is no great mystery to law’s reason-giving.  Law does not give us reasons in any special or robust way that requires additional explanation.  Law gives us reasons the way that most of our reasons are given:  as non-normative “triggers” to reasons for action that were always already there.