Unlike morality, law is, by its very nature, a social artifact. If morality is objective and consists of substantively necessary truths, those norms exist in possible worlds without intelligent beings.1 However, objective moral norms would not have application in those worlds since there are no moral agents in them. In contrast, there cannot be a system of what John Austin described as “positive law” – i.e., the social phenomena that positivism is concerned to explicate – in possible worlds without intelligent beings.
Law, then, is like a professional sports league in this important respect: if human beings ever go extinct without violence, the concrete remnants of legal systems and sports leagues in the form of documents, basketballs, courthouses, and stadiums might survive. However, legal systems and the NBA will not. Both are social artifacts constructed by our social practices that depend for their continued existence, on our continued existence.
That said, there is much that remains unclear about what law’s artifactuality tells us about its constitutive properties. In Defects and Failures in Legal Artifacts, Jonathan Crowe articulates the relationship between an artifact kind’s existence conditions and its non-defectiveness conditions. As he explains: “the non-defectiveness conditions of an artifact kind are those features that a token artifact must possess to count as a non-defective example of the kind, while its existence conditions are those features a token artifact must possess to count as a member of the kind at all.” (P. 37-38.)
Crowe distinguishes the proper functions of an artifact kind from its use functions. A screwdriver, for example, can be used to do a number of things in a number of ways and hence has numerous use functions. However, its proper function is to drive screws. One might be able to use a butterknife to drive some screws (albeit with difficulty), but that is not its proper function.
The practical importance of this distinction consists in what it can tell us about the concept of law. As Crowe explains, “determining the proper function of an artifact can yield a conceptually independent description of its non-defectiveness and existence conditions.” (P. 38.)
Accordingly, identifying an artifact kind’s proper functions enables us to address both the descriptive issue as to whether some token counts as an instance of that kind and the evaluative issue of whether it counts as a non-defective instance of it: “A proper function of an artifact of kind K … is a characteristic causal attribute of Ks which is both: (a) an essential component of any adequate explanation of why a K counts as a member of that kind; and (b) a fundamental evaluative standard for judging a K as a successful example of the kind.” (P. 39.)
Crowe explains the relationship between these two roles as follows: “[A] putative member of an artifact kind fails to be a member of that kind if it is constitutively incapable of performing its proper function.” (P. 41.) Part of what explains why a butterknife is a distinct artifact kind from a screwdriver, then, is that both objects are constitutively incapable of performing the proper function of the other in virtue of lacking the conceptually requisite properties – though they may share some use functions.
Crowe then applies these notions to the jurisprudential context: “A putative law will be constitutively incapable of fulfilling its function if it is incapable of being generally accepted as binding by the community to which it is directed. Some laws are capable of performing their function but are poorly suited to do so … [and] are therefore defective laws.” (P. 45.)
This suggests that positivism and so-called natural law theories of law are concerned with two different usages of the term “law” as they pertain to positive law – one purely descriptive and the other thick in the sense that it has both descriptive and evaluative content. The descriptive usage of “law,” then, is wholly constituted by the existence conditions for law, whereas the thick evaluative usage is constituted by the union of the existence conditions for law (its descriptive content) and its non-defectiveness conditions (its evaluative content).
Crowe acknowledges that even very bad laws can count as law on one usage of the term: “There are of course, numerous examples in human history where heinous and repugnant laws have nonetheless succeeded in gaining widespread acceptance within the community… Not every unjust law is no law at all.” (P. 46; emphasis added.)
Though the theories of Ronald Dworkin and John Finnis are commonly regarded as rivals to positivism, both have acknowledged there can be wicked law on the purely descriptive usage that positivism purports to explain. As Dworkin observes, “We need not deny the Nazi system was an example of law … because there is an available sense in which it plainly was law.”2 As Finnis similarly observes, “There is no necessary or conceptual connection between positive law and morality.’ True, for there are immoral positive laws.”3
Dworkin and Finnis are hence most plausibly construed as explicating a thick evaluative usage of “law,” which is distinct from the purely descriptive usage positivists take themselves to articulate.4 A norm that is constitutively capable of performing its proper function but performs its function defectively counts as law in its purely descriptive sense but not in the thick evaluative sense that picks out norms that perform its proper function adequately.
There might be thinkers whose theories count as anti-positivist in virtue of purporting to explain the same purely descriptive usage of law but deny positivism’s claim there are no conceptually necessary moral criteria of legal validity. But those theories cannot be reconciled with our conceptual and legal practices, which assume there can be extremely unjust laws, like those of Nazi Germany, apartheid South Africa, and antebellum United States.
Crowe’s analysis suggests that many natural law theories of law, including his own, have been wrongly characterized as anti-positivist. Moreover, it convincingly shows that a complete analysis of our conceptual practices pertaining to law must include both an analysis of the descriptive usage defined by law’s existence conditions and an evaluative usage defined by its non-defectiveness conditions.
Conceiving the difference between the two traditions in terms of a concern with two different usages shows that both theories are needed to fully explain, as the matter has been put, law’s “dual nature.”5
- The concept of morality does not imply that morality is objective; it might be that morality is comprised by a set of conventional norms, as cultural relativists believe. In contrast, it is a conceptual truism that positive law is a social artifact.
- Ronald Dworkin, Law’s Empire 103 (1986).
- John Finnis, The Truth in Legal Positivism, in The Autonomy of Law: Essays on Legal Positivism 195, 203 (1996).
- The same appears to be true of Mark Greenberg’s moral impact theory of law. As Greenberg describes his theory, “it is part of the nature of law that a legal system is supposed to change our moral obligations in order to improve our moral situation—not, of course, that legal systems always improve our moral situation, but that they are defective as legal systems to the extent that they do not.” Mark Greenberg, The Moral Impact Theory of Law, 123 Yale L. J. 1288, 1294 (2014).
- It is worth noting that dictionaries provide meanings only for the descriptive usage. While Dictionary.com provides twenty-two definitions of “law,” all concern the descriptive usage. www.dictionary.com/browse/law. The same is true of every other dictionary I have consulted, including Oxford English Dictionary. If one thinks I am according too much importance to dictionaries, it is crucial to understand that dictionary definitions are grounded in scientifically rigorous lexicographical reports of our semantic conventions for using the term. Though many ordinary speakers and legal philosophers deploy the thick usage described above, that usage has not achieved sufficient currency to warrant a report in a dictionary.
