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The Mounting Challenge to Assertions About “The Nature of Law”

Aug 9, 2012 Brian Tamanaha

A number of prominent contemporary legal philosophers identify as their central task the search for the necessary features of the nature of law. Joseph Raz writes, “The general theory of law is universal for it consists of claims about the nature of law, and about all legal systems, and about the nature of adjudication, legislation, and legal reasoning, wherever they may be and whatever they might be. Moreover, its claims, if true, are necessarily true.”¹. Scott Shapiro’s Legality is an extended treatment of the nature of law: “When asking about the nature of law…we want to know which properties law necessarily possess in virtue of being an instance of law[.]”².

Along similar lines, Julie Dickson insists that a general theory of law must “consist of propositions about the law which are necessarily true, as opposed to merely contingently, true,” because “only necessarily true propositions about law will be capable of explaining the nature of law.”³. This search for the nature of law is not limited to legal positivists. Anti-positivist Robert Alexy pursues the same project (though contesting their answers): “Thus, for the question, ‘What is the nature of law?’ one may substitute the question “What are the necessary properties of law?”….Essential or necessary properties of law are those properties without which law would not be law.”⁴.

The most puzzling aspect of this project is not the answers these various theorists produce in the pursuit of their quest but the assumption upon which it hinges: that law has a nature. Prior to embarking on a search for the nature of law one would think that the first order of business is to set forth an argument establishing that law has a nature. Without such an account, it is unclear what is being sought or whether there is something to be found. Despite the apparent necessity to tackle this preliminary question, theorists who pursue this aim have heretofore largely assumed it.⁵.

As if called forth by a growing frustration with these claims, a series of challenges has emerged in recent months: Brian Leiter’s The Demarcation Problem in Jurisprudence: A New Case for Skepticism;⁶, Dennis Patterson’s Alexy on Necessity in Law and Morals;⁷, and Frederick Schauer’s On the Nature of the Nature of Law.⁸ [And I will mention my What is General Jurisprudence? A Critique of Universalistic Claims by Philosophical Concepts of Law;⁹. Brian Bix raised probing questions on these issues earlier.¹⁰.] Each of these pieces, approaching from different angles with different targets in mind, raise probing skeptical questions about the notion that law has a nature with essential and necessary elements. I include all three in this review because all are excellent, concise, and should be read together by anyone thinking about these issues.

Leiter’s piece is the most openly skeptical. The concept of law, he points out, is a human artifact. “Artifact concepts, even simple ones like ‘chair,’ are notoriously resistant to analyses in terms of their essential attributes, both because they are hostage to changing human ends and purposes, and because they cannot be individuated by their natural properties—unlike say natural phenomena like “water,” which just is H2O.”¹¹. Leiter reminds us that 20th century philosophy of science struggled, and ultimately failed, to identify the essential features that would distinguish science from non-science—just as legal philosophers have long struggled to distinguish law from non-law. Science, a human enterprise with a variety of characteristics that are not universally shared among all branches, has proven too messy (too human) to be pared down to essential and necessary qualities.

“If, in the history of philosophy,” Leiter asks, “there is not a single successful analysis of the ‘necessary’ or ‘essential’ properties of a human artifact, why should we think law will be different?”¹². Leiter recognizes that a history of failure is “not a conclusive refutation,”¹³. but still, it does suggest that the quest merits profound skepticism. He suggests that legal philosophers are once again behind the curve on philosophical issues: “the jurisprudential Owls of Minerva, bringing considered philosophical opinion in its maturity (sometimes, alas, on its death bed) to bear on theoretical questions that arise distinctively in the legal realm.”¹⁴. In searching for the essential features of the nature of law, jurisprudents are pursuing something previously abandoned by philosophers as unfruitful if not chimerical.

In contrast to Leiter’s more sweeping arguments, Patterson conducts a careful textual analysis to critically scrutinize Alexy’s assertions about the nature of law. Alexy denies that law is a “natural kind,” Patterson observes, so “what, then, is Alexy’s argument for ‘necessary’ features of law?” Breaking down a passage in which Alexy presents his case, Patterson argues that each step in the argument is either definitional, a restatement, a bald assertion, or question-begging.¹⁵.

Patterson then takes up the two features Alexy identifies as “essential” to the nature of law: coercion and rightness. Alexy writes, “Coercion is necessary if law is to be a social practice that fulfills its basic formal purposes as defined by the values of legal certainty and efficiency. This practical necessity is the reason why the conceptual necessity implicit in the use of language is based not merely on a convention but also on the nature of the thing to which the concept refers.”¹⁶. Patterson makes two basic points in response. First, it is controversial whether coercion is a practical necessity of law; second, “practical necessity” is a softer form of necessity than “conceptual necessity,” both invoked by Alexy, and the relationship between the two is left obscure. It appears that for Alexy coercion is practically necessary but not conceptually necessary to law—or is the former somehow anchored in the latter?

Patterson closes with a discussion of Quine’s famous critique of the analytic-synthetic distinction, which rendered problematic arguments about necessity grounded in analytic statements. Since Alexy builds his argument about the nature of law on necessity, analyticity, and the a priori, Patterson observes, in it incumbent on him to address Quine’s criticisms. Patterson does not assert that arguments from necessity cannot be made about the nature of law, only that Alexy “owes us a complete account of what he means by ‘necessity.’”¹⁷.

Schauer poses the central issue—what does it mean to assert “law has a nature”? “The question about the nature of a nature, and thus about the nature of the nature of law, invokes numerous subsidiary questions.”¹⁸. Is there a uniquely philosophical sense to their talk about the “nature of law” or is it a commonsense claim that legal philosophers answer using philosophical tools? Must we answer this by identifying necessary (essential) and sufficient conditions for its existence or is it better explained through the identification of common characteristics? And so on.

At the very outset, Schauer has trouble pinning down the notion at issue because most legal theorists who make claims about the nature of law have yet to explain precisely what they mean by this.¹⁹. As Schauer observes, Julie Dickson and Scott Shapiro appear to simply assert that the nature of law” just is, by definition, the set of individually necessary and jointly sufficient conditions for its existence.”²⁰. If that is their position, Schauer objects: “the soundness of that view must emerge from an inquiry, and cannot be right simply and solely because of how we define the word nature.”²¹. Without knowing more about the possible technical philosophical meaning behind the assertion “law has a nature,” Schauer stipulates that “nature” is meant in the ordinary sense of the term, and proceeds to analyze it with this understanding.

He then offers a series of generalizations—e.g. birds have feathers—showing that while each is true, none is universally true. His point is that “general truths are different from necessary truths.”²². Outside of natural kinds, it is not clear that there are necessary or essential properties of anything, particularly so in connection with social constructions (human artifacts) like law. Law typically has courts, lawyers, and coercion, Schauer notes, but that is not to say that these are essential or necessary for law. We can think of examples of law, like customary law, that lacks one or more of these features. (In response to Schauer, they would assert, I believe, that whatever lacks the essential features of law is not law, properly understood, regardless of whether people might think of it as law.)

Invoking Wittgenstein’s notion of family resemblance, and notions of essentially contested concepts and cluster concepts, Schauer suggests that the fundamental error in the search for the nature of law is the assumption that law is a single concept with essential features. “Maybe both the word ‘law’ and our concept of law consists of a series of intertwined properties, no one of which is necessary for the correct understanding and application of the concept or the word, and no one set of which is sufficient for their correct application and understanding.”²³. After listing a series of examples in which recognized forms of law lack one feature or another, Schauer suggests that “the radical diversity of legal experience provides evidence for the non-existence of a satisfactory definition of law, or even an understanding of the nature of law, in terms of essences, or necessary and sufficient conditions.”²⁴.

None of these three articles, individually or in combination, conclusively debunks the assertion that law has a nature, but the criticisms articulated in these pieces have cast substantial doubts on the coherence of this claim. One hopes that theorists who make assertions about the nature of law will rise to the challenge and more fully develop their own position. Until that occurs, talk about the nature of law will sound quaintly mysterious.

Judging Guilt by the Content of their Character

Jun 21, 2012 Cary Federman

The law, Stanley Fish has written, “wishes to have a formal existence.”²¹. By formal, Fish meant self-contained, autonomous, and self-declaring. In other words, the law wants to deny license to the interpreters of the law to seek recourse outside the law, to the tenets of philosophy and psychology, and to the facts of social scientific research. Of course, the law does not, because it cannot, succeed in preventing lawyers, or those from other disciplines, from rendering judgments about psychological processes or behavior. Tort law relies on economics and economics relies either on moral philosophy or psychology to ground its understanding of human behavior. The same is true for criminal law, and it is especially true in insanity cases. What the law wants – if it is acceptable to speak of the law without subjects but with intent – is to control the production of legal meaning.

Janice Nadler and Mary Hunter-McDonnell have written a provocative and insightful essay that explores the limits of the law’s formalism by focusing on how non-lawyers actually perceive guilt and assign blame. They are less interested in saying that certain people, contrary to the law’s instructions in criminal trials, combine assessments of guilt with perceptions of bad character. Rather, they say that to be in a position of judgment over another requires that one’s mental processes leap over the law’s formalism and merge guilt with character assessment. Indeed, they go further and suggest that any character information that jurors have which they perceive to be negative influences the corresponding interpretation of the action under review. If these studies can be replicated over time (and Nadler and McDonnell cite other literature to this effect), then policymakers need to address the implications of this study.

The starting point of Nadler and McDonnell’s essay is the inability of the law to contain outside thought. Relying on their own empirical analysis and other research from social psychology, they write that blaming is “intuitive and automatic” (p. 257). For Nadler and McDonnell, research into social psychology validates Emile Durkheim’s idea that blaming people for moral or societal wrongs fosters a sense of social solidarity. Nadler and McDonnell do not pass judgment on this point or remark on the limits of Durkheimian sociology. They do not say, for example, whether or not lawyers understand this idea and use it to the law’s advantage. They accept the law’s formalism. But their value neutrality has its merits, which is to say that they approach this complex topic with keen insight into the literature regarding social psychology, responsibility, and blame and raise profound questions about the limits of the law’s ability to ask jurors to assess guilt without making value judgments about character.

Nadler and McDonnell conducted three (non-random) empirical studies that asked three different sets of participants to assess blame and responsibility with two or three sets of altered facts. In one experiment, a man has a trailer that contains either methamphetamines or some highly inflammable fertilizer. In putting out a fire that was caused by either the methamphetamines or the fertilizer, two firefighters, using helicopters, died (Nadler and McDonnell further complicate the issue by noting that the firefighters approached the fire from the wrong direction). In a second experiment, a man stores some oxygen tanks in a shed. He does so (1) because his daughter has a serious respiratory illness; (2) because he just started his own business; or (3) because he is a high school football coach and administers oxygen to his players, even though it is against the rules to do so. One night, some youths, who were hanging around the shed and unaware of its contents, accidentally started a fire, which ignited the shed. One of the youths died. Finally, in a third experiment, a woman lives with two dogs. In one version, she is a doting and giving aunt, has many friends, and takes good care of her dogs and herself. In a second incarnation, she ignores her nieces, watches trashy television shows, smokes cigarettes and eats junk food. In a third version, she lets her dogs run wild, causing trouble in the neighborhood. One day (and this applies to all versions), the dogs get loose and maul a boy, age 11, to death.

In each of these stories, the participants overwhelmingly either diminished or released from blame those who came across as honest or who had good intentions and blamed the least worthy characters. Nadler and McDonnell’s findings support other studies in social psychology regarding the connection between how people process information and how they assign blameworthiness. On a larger front, their findings crack the façade of the criminal law’s formalism regarding separating judgments about guilt from judgments about the character of the actor. Motive may not matter in criminal law, but “motivational forces can mold basic judgments of blame, responsibility, causation and intentionality” (p. 259), Nadler and McDonnell write. At an even deeper level, then, they force us to question the notion that responsibility is a moral concept, intrinsic to our existence. Indeed, it is not even a juridical concept, an assignation given to us by law for good behavior. In Nadler and McDonnell’s reading, responsibility is a psychological assessment used to favor those we like, agree with, or are unwilling to punish.

Nadler and McDonnell have constructed an interesting empirical study regarding blame and responsibility and combined it with keen insights into the problem of punishment. Their article raises many questions about the form and content of criminal trials that needs to be further analyzed and discussed by academics and policymakers. By examining and explaining how ordinary people approach the problem of guilt and punishment, an approach that differs markedly from the law’s understanding of human behavior, their empiricism informs legal theory. It therefore carries with it deep implications for jurisprudence.

Rationalizing Heuristics

May 18, 2012 Shubha Ghosh

Many readers are aware of the field of law and behavioral economics, which adopts insights from cognitive psychology to examine and critique prescriptions of rational choice theory for law and policy.  For those seeking a wider understanding of the background, cognitive psychology scholarship has an excellent resource in Professor Mark Kelman’s new book.  As its title suggests, the book synthesizes academic research on the use of heuristics in individual decision making.  Here, I summarize the book, putting out tantalizing teasers to encourage you to read this important volume as well laying out some of its implications for jurisprudence and legal policy.

In addition to the book, I recommend the Stanford Law School symposium devoted to Professor Kelman’s book that you can watch on YouTube after a judicious search of “heuristics debate Stanford.”  But it would be an error to take a short cut and not read the book as well.

Rational choice theory is at the center of the heuristics debate. One critical axis is known as the Heuristics & Bias approach, originated by Daniel Kahneman and Amos Tversky in the 1970’s.  Their Nobel-prize winning work tested the predictions of rational choice theory through carefully designed laboratory experiments in which subjects would be asked to make choices under different scenarios. What these experiments showed is that people’s decisions were subject to cognitive deficiencies, such as over-optimism, framing effects, the conjunction fallacy, anchoring effects, and endowment effects. Discovering and recording the extent of these cognitive failures cast doubt on the bedrock principles of rational choice theory. If individuals do not behave as the axioms of the theory predicted, what good is rational choice theory as a predictive model and guide for policy-making?

But the debate that Professor Kelman recounts for us is not solely with rational choice theory.  There is also an internal debate in the critique of rational choice.  Gird Gigerenzer, like Kahneman and Tversky a cognitive psychologist, has made the case that the biases and heuristics identified in the experiments do not mean that individuals are irrational.  Instead, he concluded that many of these so-called biases are rational short-cuts, arising from the evolutionary development of human psychology in response to environmental factors.  If you and a companion were being chased by a rapacious predator, you would up your chances of survival by adopting quick-thinking cues while your colleague engaged in clunky and complicated rational-choice-type-like analysis.

According to Gigerenzer and his various acolytes, the subjects of Kahneman and Tversky’s experiments are acting rationally, albeit not in the complex way that rational choice theory would predict.  This alternative axis of the debate is called the Fast & Frugal approach to reflect how its proponents view human psychology. Important evidence for Fast & Frugal comes from experiments identifying the recognition heuristic, which purports to show that human actors tend to choose identifiable and familiar choices even though they are wrong.  For example, when asked to pick which of two cities is bigger in a list, experimental subjects tend to pick cities they are aware of rather than the correct answer.  Professor Kelman’s book not only provides a good introduction to the Fast & Frugal school of cognitive psychology, but also presents his own experiments that question the recognition heuristic.

What is at stake in the heuristics debate?  In a penultimate chapter, Professor Kelman maps the terms of the heuristics debate onto the familiar one between Langdellians and the Legal Realists.  Kelman posits an affinity between the Fast & Frugal school with the Langdellians, and another between the Heuristics & Bias school with the Holmesian strand of the Realists.  Very broadly, Langdellians favored discrete legal rules as cues for decision making while the Holmesian Realists emphasized human fallibility.  I am not sure I fully buy this.  At a superficial level, the derivation of rules from cases parallels the search for fast and frugal cues to manage various environments. But Langdellians ostensibly are searching for the right or true rule, a goal that is irrelevant for Fast & Frugal adherents. Furthermore, the Holmesian allegiance to majoritarianism seems more like a lexical cue rather than a heuristic or bias in legal decision-making.  Nonetheless, there might be something in Professor Kelman’s homology to help us understand how legal education operates and how law students and professors think.

How about the implications for policy making?  Scholars of sociology, of history, of literary criticism have all lent their criticism of rational choice theory with each providing alternatives that can enrich our understanding of legal policy. Within economics, rational choice theory has its most powerful critics from those working on information economics, which in some strands has been influenced by cognitive psychology. What is hoped is that the research in cognitive psychology allows us to identify cognitive fallacies in a systematic way and thereby reform the design of institutions, such as the jury or consumer and financial regulations. The heuristics debate is successful in that it expands the tool kit of policy makers. Rational choice based policy invariably lead to taxes and subsidies (whether explicit or implicit). If we believe people operate through heuristics, of whatever form, the instrumentalism of taxes and subsidies seems inadequate.

Contra rational choice theory, legal intervention is grounded not just simply in market failure (rational actors suffering from collective action problems) or government failure (rational actors being captured), but in broader questions of institutional design. Richard Thaler and Cass Sunstein have written on libertarian paternalism and the design of policy that nudges, rather than simply mandates or alters prices, in order to lead individuals to the right outcome.  Professor Kelman provides some healthy skepticism about these prescriptions based on the existing academic literature. Neither school, Professor Kelman argues, has done much to help in our understanding of the concept of “error.” He asks: “When can we trust that we can help consumers correct their ‘errors’ and then make plural choices based on their inevitable diversity of circumstances and desires?”  In other words, to use some vernacular, how do policy makers know when actors are subject to systematic biases or innate cues and when they are just plain weird?

Let me add another concern. Various sides in the heuristics debate suffer from the same poverty of understanding of human behavior and psychology as rational choice theory. Both schools are attempting to make human behavior more rational, either by curbing biases or by rationalizing them through evolutionary theory. What role does human emotion play?  Are anger, fear, jealousy, and love biases and heuristics waiting to be catalogued or states of the human mind and body that have meaning separate from the concept of choice, yet integral to decision making? How to make sense of those who act out of a sense of compassion or empathy? Of course, emotions can misguide just as terribly as reason. But as I read The Heuristics Debate, and followed the academic work more broadly, Blaise Pascal’s quote played in my mind: “The heart has reasons that reason does not know.”  We do need to understand and assess these other reasons before we take a leap of faith into policy.

To illustrate this point more analytically, let me end with an example from my academic field, intellectual property.  Incentives are at the heart of intellectual property policy debate.  From a rational choice perspective, the market exclusivity granted by intellectual property rights incentivizes individuals to channel their energies into creation and invention because of the promise of above market profits.  A Fast & Frugal analysis might suggest that people are hardwired to create and invent regardless of these alleged monetary incentives because it is rational, in an evolutionary sense, to have some advantage over a competitor through a new creation or invention.  The Heuristics & Bias approach, which actually has been applied by some legal scholars to intellectual property, suggests that the endowment effect is even greater for a created work than for a acquired work because of the excessive optimism the creator has in the work’s value.

My point here, and in my work, is that all of these approaches ignore the psychological pleasure and pain that come from creating and inventing. Law has a role in shaping the environment which fosters a human need to create and interact with other creative and engaged people. That need, hard to deny, is one of the reasons that reason, and the various schools of cognitive psychology, may not understand.  I do not think I am simply revealing my own biases in making this last statement. Nor am I being overly optimistic in qualifying it with the word, yet.

Pluralism Reimagined

Apr 4, 2012 Dennis Patterson

Legal Pluralism is both a phenomenon and a response to that phenomenon.  We live in a world with a plurality of legal orders.  There are municipal legal systems and international law.  These are the most familiar forms of law, the most comfortable types of legal orders.  Then there are international or “supranational” legal orders like the European Union.  Finally, there are private and transnational legal orders that traverse the boundaries both of “law” and the very notion of a “system” (think of Lex Mercatoria or Sports law).

Jan Smits has been writing about legal pluralism for some time.  His work is always interesting.  This chapter is both intelligent and provocative because Smits takes legal pluralism to a new place and gives it a dimension no one has yet considered.

The heart of legal pluralism is the oft-seen fact of conflict among legal orders.  Pluralism of legal orders manifests itself as a struggle between two or more legal orders, each of which claims authority over a legal matter (E.g., CJEU v Bundesverfassungsgericht).  Much ink has been spilled try to make sense of these conflicts and to advance theories about how to respond to clashes between legal orders.

In this fascinating chapter, Smits asks two questions. The first question is the extent to which European private law is in fact characterized by pluralism.  To this question, Smits answers that pluralism in European private law is not a new phenomenon but has in fact been there all along.  What prevented anyone from seeing it was a lack of focus on norms being produced from a variety of sources as well as the work of private actors.  In this regard, Smits writes:

The age-old lex mercatoria would have been joined by a lex sportiva and a codex alimentarius, by codes of conduct on social responsibility and by many other types of self-regulation. These economic and functional normative systems stand next to the customary and religious systems with which legal pluralism has always been associated. It is well known that this latter field is also the area where the most obvious conflicts between State law and non-official laws exist, such as in case of treatment of women, child marriage, arranged marriage, divorce rights, inheritance, and punishment based on religious norms. (P. 5.)

Smits’ makes his most interesting proposal at the normative level.  As he sees it, responses to increased legal pluralism have not been sufficiently creative.  We have not taken adequate advantage of the increase in the pluralism of legal norms.  Here is Smits’ account of the current situation:

Different ‘solutions’ have been proposed to deal with this tension between State law and rules of other norm-­generating communities. They range from establishing a ‘neutral’ State guaranteeing overlapping consensus to identification of group rights (consociationalism) and democratic liberalism.

Problematic, however, is that these theories, at least implicitly, assume that an individual is in principle ‘trapped’ in his or her own community and is not able to ‘escape’ it. Put differently: existing theories about pluralism do not problematise the capacity of an individual itself to act and make choices. I will show in the remainder of this section why this is wrong and that we are in need of a radical overhaul of prevailing views about legal pluralism.  (PP. 6-7.)

Smits’ theoretical move is as simple as it is powerful.  He wants legal pluralism radicalized.  He starts from an empirical claim.  He asserts:

Private actors, such as citizens and firms, are increasingly able to choose the applicable law and the court of their liking. The result is that law becomes more and more a matter of choice, leading to different laws being applicable on the territory of one State: Dutch law can today be found throughout the world, as we can find German, Swedish and Italian law within the Netherlands. There is no longer one law for one territory. (P. 8.)

Smits wants citizens to have the power to opt in and out of a variety (but not all) of legal regimes, just as multinational corporations and private actors now do (in some contexts).  Once so-called “super mandatory law” is settled, citizens should have the right to opt for whatever legal regime suits their purposes.  Smits wants to radicalize present international private law to allow citizens maximum choice.  He writes:

In today’s globalising world, people increasingly travel across borders to obtain in another country the legal status they want to obtain. If they contract, marry or divorce in accordance with the laws of another State, the private international law of their State of residence will often accept the foreign law as valid: it is rare that this would be considered as a violation of the national public order of the State where the citizen resides. This is an anomaly that is increasingly disturbing in today’s globalising world because these same citizens cannot obtain the same legal status by staying at home. In other words: those who physically travel to another country and opt in to the norms of the other jurisdiction are treated differently from those who are not able or willing to do so. In my view, there is no longer a good reason for this distinction. (P. 9.)

One might wish that Smits had elaborated his points in more detail. He does provide some specific examples (e.g., religious attire, divorce and marriage) but his larger point is conceptual (in my opinion, this is where he makes real progress).  Smits sees pluralism not only as an accurate descriptive account of the state of law (in the EU and elsewhere) but he radicalizes it in a way no one has previously.  He urges us to take legal pluralism seriously and provides interesting arguments for just that view.  In short, this chapter is worthy of serious attention.

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

Feb 22, 2012 Brian Bix

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.

Law in the Neighborhood of Morality and Convention

Jan 20, 2012 W.A. Edmundson

Law is related both to morality and to convention. Differently related, surely.  But how, exactly?  That should be easier to explain if we could say how morality and convention are related to each other.  But how easy is that?

Even as children, almost all of us understand the difference between saying that something is wrong, and saying that something “just isn’t done around here.”  We would say that rape is wrong no matter how commonly it occurs; but we wouldn’t say that passing the decanter of port to the right was wrong even if we found out that, where we happened to be, doing so breaches a hallowed custom.  Not wrong, strictly speaking, anyway, if we mean morally wrong.  We all understand the difference, at least until we’re asked to explain it.  (“And which kind are legal judgments?” –one might wonder: see answer below.)

Nicholas Southwood (Philosophy, Australian National University) considers two general ways of understanding the commonsense, non-overlapping distinction between moral judgments, on one hand, and “conventional normative judgments,” on the other –such as the two contrasted above.  One way he calls the “Form View,” the other, the “Content View.”  A Form View explains the distinction in terms of a difference in underlying logical form: moral judgments are universal, or unconditional, or something like that, while conventional normative judgments are not.  A Content View distinguishes the two in terms of a difference in what the two kinds are really about, whatever their form.  Moral judgments on this type of view are about respect for persons, for example, unlike conventional normative judgments, which are about respect for appearances or for tradition or something of the kind.

Southwood rejects both of these ways.  They are open to counterexamples and, anyway, “fail to be explanatory on the right kind of way.” (P. 4.)  He advances an alternative, the “Grounds View,” which, as the name suggests, casts the difference as one having to do with what, in the speaker’s mind, justifies the judgment.  When uttering a moral judgment, a speaker does not invoke social practices, unless in some derivative manner; but when uttering a conventional normative judgment, the speaker’s grounds for saying what she says have something, necessarily, and non-derivatively, to do with some social practice or another.  In advocating the Grounds View, Southwood intends to answer those who have taken the failures of Form Views and Content Views to warrant skepticism about the distinction.

Southwood’s focal point is a distinction between two types of normative judgments.  Moral judgments are all normative; but not all conventional judgments are.  He gives the example of a group of friends who conventionally meet at a certain spot at a certain time if they wish to lunch as a group.  Conventional normative judgments are normative, in the sense that they are typically uttered with the intention of conveying the idea that some certain kind of conduct is required or, as Hart put it, “in some sense non-optional.” (Hart 1994, 82.)  Conventional normative judgments are not about any convention; rather, they are constitutive of them.  But not all normative judgments constitutive of a convention are conventional normative judgments as Southwood intends the term; for their normativity involves “a richer set of reactive attitudes” (P.  3) than those that are appropriate when, for example, someone moves a rook as though it were a bishop, not to cheat, but because she isn’t playing chess.

The distinction in question is between types of normative judgments and not between types of norms.  Southwood, surprisingly, finds the distinction between moral norms and conventional norms to be relatively easy: “conventional norms are constellations of (certain kinds of ) normative attitudes, whereas moral norms are not (even in part) constellations of normative attitudes.” (P. 3, n. 4.)  But in saying that, he does not rule out “conventionalist meta-ethical views,” viz. that all moral judgments are at bottom conventional normative judgments that we erroneously project “into the world” beyond social practice. (P. 25 n. 27.)

What is at issue then is a distinction that might better be put as one between types of judgings (attitudes toward propositions) rather than judgments (propositions or assertions).  This becomes clearer when Southwood offers his blanket objection to all varieties of the Content View.  Even if the content of a judgment qualifies as moral under a Content View criterion, what is “in my mind” (P. 11) as I make that judgment may be a justification whose relation to that content is mediated by a social practice, such as law or custom, and thus the judgment I make is not in fact a moral judgment.  This, he says, shows that any content criterion must fail.  (Building proper motive into the content will not, as Southwood rightly points out, solve the problem.)  A quizzical expression may have commandeered the reader’s brow by now.  The commonsense distinction on first appearance seemed to be one between the moral and the merely conventional, not one between kinds of rationalization one might have for making normative judgments.  (On the subject of what is sufficient in order for a normative judgment to be moral one he is deliberately silent.)  But hear him out.

Since the problem Southwood frames is one of classifying acts of judging, the Grounds View looks tailor-made to solve it.  A judging is a moral judgment only if the grounds the judger has in mind, or would offer if pushed, have nothing non-derivately to do with social practices.  (If the practice serves only to “activate the conditions” (P. 22) under which a moral principle applies, it’s derivative.)  A judging is a conventional normative judgment only if the grounds the judger has or would offer inescapably refer to a social practice (and maybe to other things as well).  Put another way, “moral judgements are essentially practice-independent.  Conventional normative judgements are essentially practice-dependent in the sense that they are necessarily grounded, at least in part, in presumed social practices.” (P. 21.)

From this perspective, legal judgments – made by anyone, whether an officially robed judge or not – are never (or hardly ever) moral judgments.  The judgment that there is a general duty to obey the law is a moral judgment whose content refers to a social practice, but whose grounds do not. (P. 25.)  Ordinary legal judgments aren’t moral judgments because the existence of a social practice is an essential part, even if only a part, of what a non-idiosyncratic judger has in mind when it comes to justifying her making the judgment.  The social practice may be merely customary, but it has to be there for any judger, save only one who believes that what morality requires can proprio vigore be law.  And no one nowadays believes that: not contemporary natural lawyers like Finnis and Murphy, not Dworkin, and certainly no legal positivist.  “We have a certain social practice around here” is going to be at least part of anyone’s ground for judging that a given norm, whatever it may be, is the law around here.

So, has Southwood turned up something that might serve as common ground uniting legal theorists of all stripes?  No.  All should agree that legal judgments aren’t moral judgments, but he has defined conventional normative judgments in a way that allows, but does not require, moral considerations as well as social practices to figure among their grounds.  Even if all can agree that legal judgments are conventional normative judgments, the familiar dispute about whether their grounds may include, must include, or must not include moral considerations will remain –but perhaps in better focus.

Leaving aside Southwood’s defense of the practice-independence of moral judgements, what of the possibility that conventional normative judgments are, at the end of the day, practice-independent too?  If asked to justify his judgment that it is wrong to pass the port to the right, a don might appeal solely to some transcendent general value that is instantiated by his social practice.  Yet, even so, we might want to say that his was a conventional normative judgment, all the same.  But if we do say that, we reject Southwood’s formulation.  He says, in defense, that to justify conventional normative judgments in wholly practice-independent ways is to  “leave out … the fact that the social practices are our practices, that they are ones to which, rightly or wrongly, we are in some important way attached … [and to] divest[] social practices of their constitutive roles in our lives.” (pp. 26-27; emphasis in original.)

If we think of legal judgments as conventional normative judgments, Southwood’s defense of their practice-dependence is bound to put legal theorists in mind of Hart’s internal point of view. (Hart  1994, 88-90.)  But Southwood’s description of the participant perspective lays it on a bit: “In internalizing and orienting our behaviour in accordance with social practice, we express a sense of affinity with our fellows by affirming a set of values that have made us who we are, individually and collectively.” (P. 30.) Did Hart imagine that legal insiders typically identify so strongly and stickily with legal practice (“Isn’t reason-giving enough?”)?  Although Southwood is keen to the difference between a participant’s and an outsider’s standpoint, the article does not make it plain whether outsiders are capable of making conventional normative judgments at all. (In correspondence, the author has assured me that “outsiders aren’t capable of making conventional normative judgements (of the kind that constitute the conventional norms of the ground with respect to which they are outsiders).”)

Therefore it is not immediately obvious how to reconcile Southwood’s account of legal judgments with Raz’s of detached legal statements, which acknowledge and convey but do not endorse the norms they state. (Raz 1979, 153-57.)  “According to the Grounds View, what is essential to conventional normative judgements is that the judger judges that the relevant principle is accepted within his own group or community.” (P. 33.)  Southwood does not, and could not, claim that moral judgments and conventional normative judgments exhaust the category of normative judgments.  Might  it be that legal judgments, for many or even most of us, are normative but in neither the moral nor the conventional normative sense?

Hart, H.L.A., The Concept of Law, 2d. ed. with postscript (Clarendon Press 1994).

Raz, J., The Authority of Law (Clarendon Press 1979).