Yearly Archives: 2020
Nov 23, 2020 Sean Coyle
Köpcke’s Legal Validity — The Fabric of Justice is an extremely rich and significant book which displays the excellent analytical and philosophical gifts of its author. It is, to my knowledge, the first book-length treatment of its subject, and contains much food for thought, and comfort, especially for hard and soft positivists. It is a manifesto for neither of those arguments, but its central topic, legal validity, is a preoccupation of both. But its treatment of its other central topic, justice, provides numerous arguments that are of keen interest for natural lawyers. The book, then, puts new ideas onto the table that promise to help break new ground in existing debates about the nature of law.
This brief review cannot hope to mention, even in passing, all of the many insights and lines of argument contained in the book, and, where necessary, simplifies points that are in fact very complex. Furthermore, since this is a review of what the reviewer likes about the book, it will for the most part refrain from intellectual criticism of some of the book’s arguments. I shall, however, raise parenthetical questions. (These are friendly questions. I do not suggest that these questions particularly disturb the author’s account, merely that they are raised by that account.)
It should be noted that the book’s project is pursued further in another book by the same author, A Short History of Legal Validity and Invalidity (2019) that is not reviewed here.
The book begins by drawing attention to the numerous contexts in which lawyers and legal scholars talk about legal validity: legally valid marriages, passports, licences and legally valid criminal statutes. (P. 1.) It asks (i) whether the uses of the term ‘validity’ across these contexts are united by underlying similarities; (ii) what is the moral import of legal validity; and (iii) whether legal validity is limited? (Pp. 3-4.) It answers (i) by noting that legally valid acts are always made, and always amount to a legal power to change legal relations; (Pp. 4, 14) (ii) by replying that legal validity makes possible, and defends, crucial aspects of human good, through ‘specific convergence’ (P. 4); and (iii) by answering that, although legal validity brings specificity to aspects of human wellbeing that are under-determined, it cannot completely close off room for human choice without annihilating human wellbeing. (Question: if legal validity is always a power, what is the significance—legal and moral—of rights, immunities and liberties?) It is an important characteristic of legal validity, or rather of legally valid acts, that they are often the product of many minds at different points in time. (P. 5.) For, by contrast, a tyrannous or repressive regime would typically involve acts of a small number of officials deciding everything about human conduct in advance.
Next, the book briefly examines the treatment of legal validity, or valid legal rules, by Hart and Raz (Pp. 20-24), but the book’s own examination begins (P. 26) with the claim that legal validity is a form of ‘say-so’, e.g. by making an application or concluding a contract. By saying so, one changes one’s legal position (and therefore the legal position of another or others). (Question: is the say-so itself capable of being valid or invalid? Would it thus lose explanatory power?) Oftentimes, one’s say-so produces changes that are not envisaged in the mind of the agent him/herself: for example one rarely reads the lengthy terms and conditions to which one is ‘agreeing’ when downloading an update to a computer’s operating system. But legal relations are changed nonetheless. For this reason it is necessary to contrast certain ranges of legal changes (such as a contract of employment ending one’s entitlement to unemployment benefit) from the acts that trigger those changes. (Pp. 49-50.)
Because a legally valid act comes into being by saying so, the book enters into an analysis of speech-acts (ways of doing/acting by saying) (Pp. 37-48) but wisely avoids a foray into formal semantics (theories of substantive meaning). (Question: is something always legally so because it has been said? Are there not some standards that are so prior to being said? Common law principles/‘rules’ are given their first expression by judges but are held to have existed unformulated and implicit in the common law.) It might be wondered how legally valid acts (one’s say-so) can exist over time, but it is obvious that legal powers and relationships last over time, or ‘circulate’ as the author puts it. (P. 51.) Furthermore, it is possible to commit unintentional legally valid acts, for legally valid acts manifest an intention, but not necessarily an intention to manifest an intention (P. 55), for example by entering into a contract to which one does not wish to be bound, and it is for this reason that the law contains provisions for the avoidance of such acts: the need for witnesses, procedures or other formalities. (Pp. 54-55, 58.) (Question: a tortious wrong changes legal relations unintentionally, but is surely not a legally valid act?)
Valid choices can be identified without recourse to justice. (P. 69.) This makes validity hazardous, but the law achieves justice not despite but because of this feature. For justice requires ‘specific convergence’: the convergent conduct of many persons following specific patterns; it highlights the specific conduct that is due from each individual in the context of a human good that can only be brought about by collective efforts, e.g. refraining from maliciously injuring another as an aspect of promoting the human good of health. (P. 71.) But such conduct only becomes ‘especially apt’ (due?) when there is a context of other practices that foster that good (such as clean air, water and easy availability of food). Such convergent conduct does not mean the same conduct: a tax system typically does not require the same contribution from every person. (P. 74.)
It is necessary to distinguish the law’s marking mechanisms from its enforcement mechanisms (P. 82); both are required for convergence, but legal validity is the law’s mark (P. 83); it is not only a mechanism for change, but a signal that a change has happened. The identification of a valid choice must not be based predominantly upon its merits or content. (P. 87.) (Question: what is the scope and force of this ‘predominantly’? Could this, e.g. leave open the door to natural law theories?)
The next part of the book’s argument is subtle and complex, and impossible to summarise in a short review. It deals with ‘reasons to empower’, which are considerations of justice (Pp. 101-118): these involve four types of reasons: expertise and capacity, proximity, the rule of law and self-direction. The book’s analysis in these pages summarises the principle of subsidiarity and its implications, and contains a lengthy discussion of the rule of law in a manner reminiscent of Fuller: not only in kind, but also in the ambition to connect the abstract requirements of ‘inner-morality’ with concrete legal concerns. If it were possible to identify the best part of an excellent book, this would be it.
In the book’s final chapter, we are told that justice requires the law’s positivity, that is (i) its relative determinacy, (ii) its relative identifiability, and (iii) that it is relatively targeted in approach. What stands out in this section is the following proposition: ‘By the law’s positivity I mean the fact that the legal positions persons are in at any point are determined by the legal meaning of valid acts rather than by moral considerations that are not part of the legal meaning of valid acts.’ (Pp. 124.) Critics may come to ponder the significance of this proposition alongside Gardner’s definition of positivism and Raz’s sources thesis. (Pp. 151-52.) (Question: if moral considerations are sometimes part of the ‘legal meaning’ of valid acts, how does one distinguish between this morality and the morality that is not part of legal meaning? For this is unlikely to be amenable to sharp distinction.)
Later, the author repeats the warning given in this section that ‘validity could not serve as a technique . . . if identifying valid decisions predominantly turned on moral judgments.’ (P. 160.) But I close this very brief and exceedingly schematic review with a quotation from its last page (I hope the author will forgive the very short treatment given to the book’s very rich and complex arguments): ‘Validity makes it possible to craft just relations between persons by dressing those relations in clothing that hides their justice from view. This is why injustice, too, can bear validity’s mark.’ (P. 163.)
Oct 21, 2020 W.A. Edmundson
“Capital = Asset + Coding” is the axiom that serves as Katherina Pistor’s tool of analysis, to lay bare the role of law in the history of capitalism. An asset can be anything—a plot of ground, a machine, an idea, a debt, a sequence of molecules—but an asset becomes capital when, but only when, it has been “coded,” that is, when it has been endowed with specific modules of legal protection: she calls them priority, durability, universality, and convertibility.
Pistor, the Edwin B. Parker Professor of Comparative Law and Director of the Center on Global Legal Transformation at Columbia Law School, laments that “economists … have clung to the notion that capital is a physical input, one of the two factors of production, when in fact, capital has never been about a thing, but always about its legal coding; never just about input and output, but always about the ability to capture and monetize expected returns.” (P. 116.) Her book has won awards already, including two “best books” citations from the Financial Times. The financial press is taking heed, and legal academics should, too. This wonderful book is destined to inform the difficult way ahead, as global capitalism’s second crisis in a dozen years overwhelms us.
Lawyers have enclosed all manner of assets in these four modules of protection. “Priority” determines who has an enforceable claim on an asset, and in what order. “Durability” is the possibility of capital surviving the death of an owner or the dissolution of a partnership or the claims of a creditor or regulator. “Universality” protects the capital owner against all comers, wherever the asset may be, at home or abroad, or nowhere at all. “Convertibility” means that capital, in whatever asset, wherever held, can be exchanged, on demand, for “state money.” (P. 3.)
The book exposes the continuity over centuries that connects the feudal estate, and its exotic encoding, to the even more exotic collateral debt obligation and credit default swaps circulating in the run-up to 2008, and to the blockchained private currencies of the moment. We lawyers are the masters of this code. Legislatures and courts are the late-comers who ratify—but rarely disturb—what the lawyers do in service to private capital. It was the English solicitors who enclosed the commons for the landed gentry while shielding their enclosures from the reach of creditors. It was the lawyers too who devised debt instruments for the creditors, and who later, as ingenious “conveyancers,” eventually broke open or conveyed-around the code-laid-down. It is the legal code-meisters of our era who have enclosed the digital commons and even segments of the genetic code, converting these raw assets into capital, and then into fabulous private wealth for the few, in the midst of the sinking expectations of the many.
One of many examples: Google owns the data inputed to and generated by the program PageRank —not as a matter of patent (it was Stanford’s, and has expired), but as a trade secret, which is not time-limited. It amounts to a lawyer-devised genus of “data-generating patents” (P. 128) unknown to statute. Pistor calls this and like maneuvers “the second enclosure (this time of knowledge rather than land)…We are now in danger of losing access to our own data and to nature’s code for the sole purpose of giving select asset holders yet another opportunity to expand their wealth at the expense of the rest.” (P. 131.)
Universality and durability are the modules that give capital wings to fly from one jurisdiction to another, as if on “legal steroids,” (P. 9) endowing capital with freedoms that not even the wealthiest natural persons can know. “Capital coded in portable law is footloose; gains can be made and pocketed anywhere and the losses can be left wherever they fall.” (P. 9.)
The limited-liability corporation is a key invention: corporate investors stake only what they pay for shares. The uniquely anglophone device of the “trust” adds another durability: an asset settled into a trust is shielded from creditors of the settlor, of the beneficiary, and of the trustee.
The corporate form and the trust allow practically limitless subdividing, cloning, and nesting, and enable capital to elude the taxing and regulatory authority of the state. Coding can turn a firm into a “capital-minting operation,” in addition to or instead of a business participating in the real economy. (P. 48.)
To illustrate, Pistor performs an autopsy of Lehman Brothers, in its transmogrification from a retail operation in antebellum Montgomery, Alabama, set up by three Bavarian immigrants, to a go-to funding source for clients of Goldman Sachs, to a holding company “with 209 registered subsidiaries in twenty-six jurisdictions” and “hundreds, if not thousands, of special-purpose vehicles, or SPVs, in the form of trusts or limited liability companies” (P. 51) on the verge of its collapse in September 2008, precipitating the Great Recession. Tranched and nested again and again, the underlying assets—in essence only IOUs—became inscrutable. Nobody knew what they were buying and, until the music stopped, nobody cared. The tale has been told elsewhere, yet Pistor’s unpacking of the legal devices involved is novel and chilling.
She spotlights the importance of a shift in the choice-of-law rules. The once-dominant “seat” or “real-seat” theory required firms to incorporate in any jurisdiction where they do business, if they wished to enjoy the benefits of doing business there as a corporation. With the ascendance of neoliberalism, real-seat theory was unseated in favor of “incorporation theory,” which allows a corporation to incorporate in its favorite jurisdiction and nonetheless to enjoy the advantages of the corporate form everywhere it does business—assuming those places accede, as states practically must to play in a globalized economy. Capital is unwilling to call unless it can bring its favorite corporate law along.
Incorporation theory makes it possible for corporations to choose the tax rate they wish to pay. Pistor cites the case of Apple in Ireland. Apple was booking its EU revenues in low-tax Ireland until the EU—despite its adherence to incorporation theory—stepped in and docked Apple for having taken “illegal state aid.” Even so, “tax” and “regulatory arbitrage” and a race to the bottom in labor and environmental standards and corporate tax rates is rampant.
While the internal culture of the big law firm master-coders is restlessly innovative, the external visage of law itself is the opposite. Law presents itself not as an accumulation of clever, contingent, humanly devised advantages, but as an enshrinement of natural entitlements, whose fundamental legitimacy is beyond question. “Choosing the assets” to be encoded is “an exorbitant privilege” accorded to lawyer/coders to the benefit of those who hire them —“exorbitant” because this choice “is tantamount to controlling the levers for the distribution of wealth in society.” (P. 19.) This privilege is “the mother of all subsidies” (P. 222), which is all the more valuable for its sheer legality, giving private interests “enormous cognitive sway” over politics and polities. (P. 20.)
Marx and Engels wrote that capitalism constantly revolutionizes the means of production. Pistor shows how neoliberal capitalism has turned away from research and development of productive means, and toward asset-sheltering and debt-minting best done by the “best lawyers.” (P. 161.) Despite their “special responsibility for the quality of justice” (MRPC Preamble), lawyers “tend to ignore the external effects of their coding efforts.” (P. 166.) The wealth they help create bears less and less relation to the real economy, and skyrocketing inequality leads to popular resentment, alienation, and the widely remarked, ever-growing “democratic deficit.” Capital on steroids cannot stop itself.
The truth is that in a world in which well-coded roving capital faces a diffuse and unorganized public scattered over multiple polities, a social contract is beyond reach,even if capital wanted it for the sake of its own survival. (P. 223.)
Pistor sketches a program for reform, whose “basic task would be to roll back control by current asset holders and their lawyers over the code of capital by limiting the choices at their disposal.” (P. 224.) Leading the roll-back is “a bright-line rule to refrain from offering capital legal privileges over and above the basic modules….” (P. 225.) This will mean limiting capital’s liberty to choose fora and governing law, and refusing enforcement of “purely speculative” contracts. (P. 227.) What else? Abolish the trust? Insist on codetermination in corporate governance? Forbid trading in debt, the asset distinctive of capitalism (77, 200)? She never says what’s “basic” or where the roll-back stops. And how to deal with capital’s push-back?
Claims that [rolling-back] would deny some actors the opportunity to increase the pie to the benefit of all should be eyed with suspicion, as past experience shows that even big pies are usually devoured in solitude or only by invited guests. (P. 225.)
As for the politics, Pistor hopes that the “persistent incrementalism” (P. 229) that has worked for capital’s encoders might also work for the roll-back needed to restore democratic legitimacy. The alternatives are either a “true revolution” or “the further erosion of law’s legitimacy as a means of social ordering.” (P. 234.) In short: expect some form of noncapitalism (to arrive by increments or by revolution), or—despite its recurrent crises—a persistently incremental neo-feudalism (i.e., more of the steroidal same).
If Justice Holmes was right, that the law is nothing more pretentious than a prediction of what (our heretofore largely irrelevant) judges will do, then we, at our “current conjuncture,” haven’t any idea what the law is.
Editor’s note: For a previous review of The Code of Capital see Robert Gordon, Masters of the Code, JOTWELL (September 28, 2020).
Sep 22, 2020 Brian Bix
Dan Priel,
The Philosophy of Law for a Naturalist: An Introduction to Artificial Law Theory, Osgoode Legal Studies Research Paper (June 12, 2020), available at
SSRN.
In this provocative article, Dan Priel offers a naturalist approach to thinking about law. This naturalist approach, in turn, leads to two ambitious lines of arguments: first, rejecting many traditional jurisprudential inquiries, and, second, providing a highly unconventional view about the relationship of morality and law.
Naturalism (not to be confused with “natural law theory”) has been defined in different ways. Early in the article, Priel offers a useful (if, as he notes, imprecise) summary: naturalism is the view that “explanation[s] of [human] actions should be continuous, and of the same kind as, explanation of the nonhuman part of nature.” (P. 2.) Naturalism within legal philosophy has, for some time, been associated with Brian Leiter. However, Priel criticizes Leiter’s approach as being little more than an argument for (existing) empirical work on law, while offering no tasks for legal philosophy. As will be noted, Priel agrees that naturalism rejects some traditional jurisprudential topics, but he believes that there remains room for, and, indeed, a need for, a distinctively naturalist jurisprudence.
Priel is dismissive of the type of conceptual analysis that has been central to contemporary analytical legal philosophy (and featured especially by those more inclined towards legal positivist positions, like Joseph Raz, Andrei Marmor, and Scott Shapiro). Priel correctly points out that there is something inherently problematic about offering claims about the “necessary” or “sufficient” attributes of an ongoing social practice like law. He writes: “we have a debate with two moving parts: There is disagreement on both the objects in the world that are laws, and on the account of law. And as a result, no argument can be decisive against a competing view.” (P. 8.)
It should be noted that in this part of the argument Priel occasionally overstates his case. For example, he states that “it is notable that philosophers do not think that philosophy has much to say with respect to ‘what is…’ questions on other human creations.” (P. 5.) He thus overlooks a substantial literature on topics like “what is art?” and “what is democracy?” Even the author’s reductio–why do philosophers not inquire into the nature of golf (Pp. 5, 6, 7)?–has a relatively recent counter-example in a dispute from 2001 (Casey Martin had a medical condition that required him to use a golf cart rather than carrying his own golf bag, but the administrators of the professional game would not allow it–there was a mixed legal and philosophical question, for the purposes of the American with Disabilities Act, regarding whether carrying one’s own clubs was integral to what counted as “golf”.)
Priel does not doubt that there are important philosophical questions to be asked in connection to the nature of law. However, he doubts that the questions that need to be asked are distinctive to law. For example, we should inquire about metaphysics (ontology, grounding) of law, but there is, he argues, no reason to assume that the answer in regards to law will be different than that for other social practices. Similarly, Priel contends, for all the inquiries regarding the “normativity” of law. He rejects the view, put forward by a number of legal theorists, that there is something distinctively troubling about the way mere facts of legal official actions appear to create reasons for action. As Priel points out, we are surrounded by human actions apparently creating norms (of different types): from promises to etiquette to proper language use.
Priel would redirect the focus of jurisprudence: “instead of thinking of jurisprudence as unique because it plays a preliminary role to other inquiries, jurisprudence can make a unique contribution to our understanding of law because it presents the bird’s eye view on law.” (P. 21.) The author describes his own approach as “artificial law theory,” not (primarily) as a contrast to “natural law theory,” but to reflect a focus on law as artifact–as a human creation meant to serve certain purposes. (“Artifact” appears to be the current fashionable focus for legal theory: it is central to recent natural law writings of Mark Murphy and Jonathan Crowe, and it was the focus of a 2018 collection, Luka Burazin, Kenneth Einar Himma, and Corrado Roversi (eds.), Law as an Artifact (2018).)
The second half of the article offers a novel view about the connection between law and morality: but not the well-worn path of the debates between legal positivists, natural law theorists, and others, regarding whether there are or are not necessary moral/evaluative aspects to systems or norms that count as “law.” As a threshold matter, Priel, as a naturalist, is skeptical of the objective view of morality (and the sharp distinction between conventional morality–social norms–and critical morality) that is assumed in most of those discussions. Additionally, Priel wants to question the standard view that law does or should reflect morality: that (e.g.) contract law should, to the extent possible, reflect promissory morality, and that tort law should reflect moral views about liability and compensation.
The picture Priel paints is one where law often diverges from morality, and, in doing so, helps to change and improve morality. The divergence of law and morality in part reflects the artificial nature of law–its technologies of procedure and enforcement, and the developments that follow through doctrinal legal reasoning. Additionally, legal rules and legal enforcement can overcome the well-known problems of self-serving biases and other cognitive biases. As Priel writes, “Morality is a poor guide to action, and it is the poor guidance provided by morality that law fixes.” (P. 33.)
Priel’s vision of legal philosophy ultimately is expansive, incorporating knowledge and tools from other disciplines, and seeking the sort of explanations currently associated with other approaches, like sociology of law and cultural studies:
It includes within its remit questions about the role of ideas and culture in legal development, in the relationship between human nature and law, between technological change and jurisprudential change. It includes discussing how the institutional perspective ties with the individual one (how what “the law says” on a certain issue is related to the attitudes of individuals); the ways legal cultures (legal families, legal traditions) are created, how they are sustained, and how they evolve; and the relations between different areas of law and law in general. (P. 21.)
So while Priel would take away from legal philosophers old discussions about “what is law,” he still leaves jurisprudence with a great deal of work to do.
Cite as: Brian Bix,
Dan Priel’s Naturalism, JOTWELL
(September 22, 2020) (reviewing Dan Priel,
The Philosophy of Law for a Naturalist: An Introduction to Artificial Law Theory, Osgoode Legal Studies Research Paper (June 12, 2020), available at SSRN),
https://juris.jotwell.com/dan-priels-naturalism/.
Aug 4, 2020 Barbara Levenbook
There is a default theory of legal content that many legal positivists – and non-positivists – accept. It is that the legal contents of texts, or of authoritative pronouncements in general, are, or match, their full (that is, pragmatically-enriched) linguistic contents. Nine years ago, Mark Greenberg published an influential article called The Standard Picture and Its Discontents, attacking what he called the “Standard Picture” predominant among legal theorists. The aforementioned default theory of legal content is one of what Greenberg called the Standard Picture’s “prongs.” Among Greenberg’s objections to this theory, which is sometimes referred to as a “communicative content theory” of law, is that it cannot account for aspects of familiar legal practice. Dale Smith refers to this type of objection as a “practice-based objection.” (He notes that Greenberg is not the only legal theorist to raise a practice-based objection to the communicative content theory.) Practice-based objections, from Greenberg and others, depict an apparent gap between communicative content and legal content. This gap is especially troublesome for many theorists of statutory legal content. In particular, the gap poses a problem for anyone attracted to the idea that statutes are communications from the legislature and ought to be understood and applied the way ordinary communications are.
In this intriguing article, Smith is both friend to a communicative content theory and foe. He is a friend by demonstrating, again and again, how practice-based objections raised so far can be accommodated by such a theory. But he turns foe with his consideration of the practice of using what he refers to as “retrospectively operating modifier laws.” His thesis is that practice-based objections to date are not fatal to a communicative content theory of law, but that there is a practice-based objection that may be.
Smith’s central point from legal practice is that retrospectively operating modifier laws are treated in practice as altering the legal effect of earlier statutory provisions. This produces a gap, sometimes quite significant, between the linguistic meaning of an earlier statute and its legal effect. One of his chief examples is a section of the 1998 Human Rights Act, which changed, in an important way, the interpretation of earlier U. K. statutes. He argues that a statute such as the Human Rights Act cannot be treated as a direction to judges to make new law. Nor is its legal effect a simple aggregation of the linguistic meanings of the earlier statute and the relevant section of the Human Rights act. Rather, the later modifier law substitutes one legal effect (without, in the case of the Human Rights law, sufficiently specifying that substitution) for what the earlier statute’s pragmatically-enriched linguistic content might suggest.
In his argument, Smith assumes that no satisfactory account of pragmatic enrichment of language can take a later modifier law as an input. That assumption appeals to the many legal theorists committed to the view that the pragmatics of statutory language must make essential reference to the intention(s) of the enacting legislature (either actual or what it would be reasonable to suppose they were). (The relevant intentions might be alleged to be either communicative or referential.) If Smith is correct in his assumption, he has made a valuable contribution by clarifying what legal practice does and does not reveal about legal content as communication (according to the received wisdom about the nature of communication). But I must add a cautionary note. It would be premature to conclude that Smith’s is the last word on the communicative content theory. Whether it is depends, in part, on the success of the theory of legal content elucidated by Hrafn Asgeirsson in the first chapter of his The Nature and Value of Vagueness in Law (2020). The debate, in other words, goes on.
Jul 7, 2020 Michael Green
It is curious that Anglophone philosophers of law (many of whom have had some training in logic in conjunction with the classwork required for a Ph.D.) ignore deontic logic — the branch of logic that deals with propositions that employ normative concepts like obligation and permission. The point is not that deontic logic can answer problems in the philosophy of law, but that it can help reveal them. This very short paper by Robert Mullins is a wonderful example. It concerns the apparent incompatibility between a commonly accepted inference rule in deontic logic, deontic detachment, and the core principle of positivism, the social thesis.
According to deontic detachment, the following reasoning is valid (if the premises are true, the conclusion must be true):
1) It ought to be that if P then Q.
2) It ought to be that P.
Therefore…
3) It ought to be that Q.
Mullins’s legal example is a law obligating all those who file income taxes to do so by the close of business Friday and another law obligating one to file income taxes. It follows from deontic detachment that one is obligated to file income taxes by the close of business Friday.
Now for the social thesis. Mullins’s formulation is controversial:
Legally it ought to be that φ if and only if the proposition that it ought to be that φ is accepted by legal officials.
Given this understanding of the thesis, there is indeed a conflict with deontic detachment. Although the premises in Mullins’s legal example are accepted by legal officials, the conclusion (that one ought to file income taxes by the close of business Friday) need not be. But that doesn’t matter to its status as a legal fact.
Now someone might question whether legal officials might not accept the conclusion. True, there is no law under which one ought to file income taxes by the close of business Friday. But officials, putting two and two together, would surely have accepted that fact. But as the number of laws (and other law-making acts) increases, one will reach a point at which there are many legal consequences that have not been entertained by any official, much less the bulk of officials. That does not appear to make a difference to their status as legal facts.
What is more, Mullins argues that other rules besides deontic detachment can generate legal facts that outstrip official acceptance. Assume that there is a law under which one ought not camp on public property. Employing closure under logical consequence, it is also the case that Fred ought not camp on public property, and that he ought not do so on Wednesday, and that he not do so on Wednesday while wearing a brown suit. But none of these legal facts has been entertained by legal officials.
Mullins emphasizes those unacknowledged legal facts that follow from laws. But at times laws themselves can be unrecognized. It is possible for a law to have been enacted without the lawmaker, or other officials, being aware of that fact. Accidental lawmaking can occur.
Mullins’s initial account of the social thesis is too strong, however. The usual way that the thesis is put is that the existence and content of the law (or, alternatively, all legal facts) ultimately depend solely upon social facts. The core social facts upon which legal facts ultimately depend do indeed concern acceptance by a community’s officials, but positivists do not insist on a one-to-one correspondence between the legal fact that φ and officials’ accepting that φ. What is required is official acceptance of fundamental rules of the legal system. The legal fact that the United States Constitution is binding ultimately depends upon American officials’ accepting that it is. But countless other legal facts concerning the American legal system can obtain without American officials’ recognizing them at all.
In the end, this is precisely the point that Mullins seeks to make. The social thesis must construe official acceptance narrowly, in a way that allows legal facts to outstrip official attitudes. And this is, I believe, an exceptionally important point — the implications of which have not always been taken to heart by positivist philosophers of law. If the legal fact that φ can obtain even though officials do not accept that φ, there must be some facts other than social facts about official acceptance by virtue of which it is a legal fact that φ. What are those other facts?
I think positivist philosophers of law should concede that the requisite facts concern abstract objects: facts about the fundamental rules of the legal system and facts about the rules that are identified as laws by those fundamental rules. Although this point has not been widely recognized by positivists, I think some would be quite willing to concede this role played by abstract-object facts in determining legal facts. See Shapiro, Legality 102-04 (2011).
An analogy with a language is appropriate here. Some philosophers of language understand languages as abstract objects — in particular, functions from strings of scribbles or phonemes to propositions (which are themselves abstract objects). Under the abstract object that is French, “Il pleut” takes one to the proposition it-is-raining. Such facts about French are not social. They can’t be, for there is an infinite number of such facts about French, more than any person could ever entertain. Nevertheless, what makes it such that the French speak French — what connects them to that abstract object (rather than, say, to Esperanto) — is social facts about the French people.
Positivists should take the same approach. The abstract object that is the American legal system is not social. It can’t be, for (as Mullins shows) there are more facts about this system than can ever be entertained by American officials. But what makes it such that Americans have the American legal system — what connects them to that abstract object — is social facts about American legal practices, in particular, facts about official acceptance.
This is a relatively limited challenge to positivist theories of law. A prominent theme in Ronald Dworkin’s writings is the existence of theoretical disagreements, in which officials disagree about even the fundamental rules of the legal system, while nevertheless thinking that their disagreement has a preexisting legal answer. Dworkin, in effect, argues that social facts about official acceptance cannot determine what legal system should be assigned to a community. That can be done only if we include moral facts as well. This challenge to positivism takes us well beyond the one presented in Mullins’s paper.
