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In the article, Lawful, But Not Really: The Dual Character of The Concept of Law, Brian Flanagan and Guilherme de Almeida challenge the traditional divides in jurisprudence as to the definitions of the concept of law as well as the concept of legal validity. The article intends to offer a novel, third-way approach between the two traditionally most populated camps in legal philosophy, namely positivism and natural law theory.

The novelty of the article does not consist only in its theoretical appeal, but also in adopting a relatively new methodology, namely the methodology of experimental jurisprudence (“xjur”). Xjur seeks to shed new light on traditional jurisprudential questions by employing the methodology of the psychological, sociological, or cognitive sciences. The methods include, among others, massive online surveys, corpus studies (analyzing a large collection of texts), neuroimaging, or decision-making in immersive virtual reality. Using these methods permits researchers to achieve a more accurate grasp of how people understand concepts such as, for example, intention, causation, rule, law, or reasonableness. Moreover, using such methods permits us to end speculation as to, for example, what the linguistic or conceptual intuition of a certain population is. See SEP entry on experimental jurisprudence.

The Authors employ the methodology of massive online surveys in a very rigorous way. They first preregistered their hypotheses, which consist of placing these hypotheses on an online platform that makes it impossible to alter them after running the experiments. The Authors performed a series of attention and comprehension checks, ensured that no participant would take the study twice, and that participants would be native speakers of the language of the survey.

Flanagan and Almeida argue that the concept of law is a dual character concept. But what is a dual character concept? Imagine that someone paints with a brush on canvas an incredibly kitsch landscape. There is a shallow, superficial sense in which it is art, as it is a painting. However, since the painting is empty and does not convey much of a message, one could say that it is not really, or truly, art in a deeper sense. By contrast, think of conceptual art – it may not be a painting on canvas, but it might convey a very powerful message. Thus, one could say that there is a superficial sense in which it is not art, yet in a deeper sense, this is truly art.

Analogously, think of the concept of a scientist: if someone performs a lot of experiments, yet has no curiosity or interest in the truth, are they a true scientist? Or only a scientist in a superficial or shallow sense? By contrast, think of a person who never performed any experiments, but has some innate, avid curiosity for the world. There is a sense in which this person is not a scientist, yet there is also a sense in which this person is a true scientist.¹

Flanagan and Almeida argue that the concept of law also has a dual character, just like the concept of art or the concept of a scientist. For example, imagine that a legislature enacts an incredibly unjust and immoral statute that enables slavery. You could say that there is a shallow sense in which this is a law as it was enacted by a legislature, but it is not a real or true law, because it is so immoral. Conversely, if slavery was never banned in a country, one could say that there is no law against slavery in a superficial sense, but slavery is not really or truly lawful.

The general idea is that certain concepts have two sets of application criteria. First, some descriptive, superficial criteria of application and, second, some normative or deep criteria. Flanagan and Almeida argue that, for the concept of law and the concept of legal validity, the superficial criteria could be, for instance, enactment by a legislature, while the deep criteria may be certain values, rights, or morality, be it substantive or procedural.

Such a manner of conceptualizing law presents a third way between the two biggest traditional jurisprudential camps of defining the concept of law, namely positivism and natural law. There are many varieties of positivism; however, roughly speaking, a positivist would claim that there is no necessary connection between law and moral value. Thus, a law in a superficial sense, but not in a deep sense, may be a valid law (though Hart acknowledged the need for a minimum necessary moral content of law; on the blurred divide between positivism and natural law theory, see footnote reference).² Conversely, a law not in the superficial but in the deep sense may not necessarily be a valid law.

By contrast, the proponents of natural theory doctrines would, roughly speaking, claim the opposite: a law in a shallow sense, but not in a deep sense, is not a law, while a law in a deep sense, but not in a shallow sense, may well be a valid law. This is a much simplified picture; I refer the reader to Flanagan and Almeida’s excellent paper for more nuance on the different stances on the concept of law. The Authors also discuss different candidates for the values underlying a dual character concept of law, one of them being Fullerian procedural morality.

The central question that remains is whether this stance is shared by the wider population, or is it just philosophical speculation? Flanagan and Almeida perform two preregistered experiments, arguing that the dual character intuition is indeed shared by a substantial part of the population. They tested scenarios in which a ban on a morally neutral or immoral behavior was either lifted or the behavior was never banned. In such cases, people tend to agree with the statement that “there is a sense in which [conduct-type] is clearly lawful, but ultimately, if you think about what it really means to be lawful, you would have to say that [conduct-type] is not lawful at all.” Check out their paper for more riveting details on the concept of legal validity!

1. Joshua Knobe, Sandeep Prasada & George E. Newman, Dual Character Concepts and the Normative Dimension of Conceptual Representation, 127 Cognition 242 (2013); Kevin Reuter, Dual Character Concepts, 14 Phil. Compass e12557 (2018).
2. Kenneth E. Himma, We Are All Positivists Now: Two Concepts of Law (forthcoming).