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CONFUCIUS, HISTORY AND JURISPRUDENCE

May 14, 2025 Andrew HalpinAdd a Comment

For those interested in the specific subject matter of Norman Ho’s recent article in Jurisprudence, “‘The Confucianization of law’ debate,” it provides an informative read, offering some original insights on the historical evidence for the influence of Confucianism on Chinese law. A wider readership should be attracted to this article for Ho’s stimulating reflections on the interplay between historical and jurisprudential accounts of the topic.

The platform for Ho’s wide-ranging discussion is an examination of Qu Tongzu’s “Confucianization of law” theory and its reception within the literature. Ho suggests that Qu’s theory should not be regarded merely as offering a contribution to legal history. Rather, Ho argues, its jurisprudential qualities should be acknowledged. In Ho’s view, this permits a fuller investigation of Qu’s theory. More than that, Ho produces a general schema to differentiate the impact of historical and jurisprudential perspectives on the debate. In addition, he draws upon a fascinating case study of kinship concealment in Chinese law.

Ho details (Pp. 361-62) the immense significance of Qu’s work for the theory of the Confucianization of Chinese law, both within China and beyond. The theory describes how “Confucian moral teaching[s] were introduced, penetrated, and ultimately codified into the written law” (P. 361), and Ho explains that these moral teachings centered on the concept of li, which can be translated as “ritual propriety,” but a propriety understood to be dependent on the recognition of status and hierarchy (P. 363).

In opposition to Confucian moral thinking, the approach of the Legalists emphasized the concept of fa (law) and promoted the view “that all – with the exception of the
ruler – should be equal under the law” (P. 364). According to Qu, the contest between these two schools was fought alongside the succession of different Chinese dynasties over a period of several hundred years, between 221 BC to 921 AD, with Legalism prevailing in the Qin Dynasty, Confucianism getting the upper hand in the Han Dynasty, and strengthening its hold in the Tang Dynasty. The culmination of the Confucian influence was the enactment of a code under the Tang Dynasty in 653 AD based upon the Confucian li (P. 364).

As a purely historical account, Qu’s theory is open to a number of criticisms, but Ho insists it should also be regarded as possessing a jurisprudential element. In Ho’s view, when Qu argues that Chinese law “codified Confucian morality, and reflected Confucian moral norms,” he (Qu) is providing a descriptive jurisprudential account adopting (a form of) the mirror thesis (Pp. 365-66). This adds a different set of criticisms to which Qu’s theory is vulnerable.

Ho provides a preliminary classification of the different types of criticisms, historical and jurisprudential, which might be made against Qu’s theory. He acknowledges the counterarguments he identifies are not mutually exclusive, and does not claim that his classification is exhaustive (Pp. 367-68). His principal contention, with regard to Qu, is that a detailed survey of the existing criticisms reveals that they engage with the historical aspects of Qu’s theory, and ignore the jurisprudential aspects, so limiting the scope of their critique (Pp. 368-69).

At this point, Ho introduces an illuminating case study on kinship concealment (Pp. 369-73). Kinship concealment is the moral teaching that a son should not provide evidence of his father’s crime but instead conceal it. The son-father (or father-son) relation is a strong example of the teaching that covered other close relationships, and Ho traces it to Analects13.18, where Confucius states that fathers covering up for their sons and sons for their fathers is a form of “uprightness” (P. 370).

The statement of Confucius is made to refute the view of the Duke of She who boasts of the uprightness of a citizen who reported his father for stealing a sheep to the authorities. We then appear to have a clear contest between Confucian li and Legalist fa, respectively supporting or rejecting the teaching of kinship concealment. In order to test Qu’s theory, accordingly, one can consider the historical sources to find out whether this teaching is to be found in the laws that are supposed to reflect Confucianism.

Ho’s initial examination of the sources provides support for Qu’s theory (P. 371). However, Ho detects “a slight wrinkle” (P. 372), in that there is also evidence that kinship concealment is supported during the Qin dynasty, whose laws, according to Qu, were supposed to reflect Legalism. Ho then detects the possibility of “a further wrinkle” (P. 372) in that:

Despite the possible institutional and legal practices of the Qin in allowing kinship concealment in certain cases, Legalist philosophers in their legal and political thought seemed to consider such practices anathema.

Clearly, both wrinkles are problematic for Qu’s theory, but in considering their fuller implications (Pp. 372-73) Ho reinforces his contention that criticism of Qu is inadequate if it fails to engage with the jurisprudential aspects of his theory. Whereas the discussion of Qu’s theory in purely historical terms has narrowed the central issue down to whether there is evidence of a Confucian or Legalist influence on Chinese law, the broader jurisprudential perspective may interrogate Qu’s mirror thesis, and even consider “more universal human behaviours as explanations for why a law is the way it is, rather than look for social norms emanating from a specific philosophical school.” (P. 374)

Ho is careful to point out that his insistence on including a jurisprudential perspective does not exclude the relevance of historical facts (Pp. 367, 370, 374). The burden of his essay is to point out that an exclusively historical perspective will incorporate assumptions regarding the nature of the debate. A jurisprudential perspective may valuably widen our understanding of the debate and so assist in identifying and questioning an author’s assumptions.

Some clear lessons are offered here to legal historians, beyond the specific subject matter with which this article is concerned. Less obviously perhaps, but certainly not ruled out by Ho’s careful discussion, are lessons for those preoccupied with a solely jurisprudential perspective, about the possibility of testing their assumptions by an investigation of the historical facts.

Originalism’s Plain Meaning Problem

Apr 15, 2025 Nina VarsavaAdd a Comment

In The Plain Meaning Fallacy, Bill Watson exposes a problem in what he considers the dominant form of originalism today—original public meaning (OPM) originalism. OPM originalism takes the content of constitutional law to be determined by the communicative meaning of the text at the time of ratification. The problem is that the justifications for OPM originalism as a theory of constitutional interpretation apply only when OPM is plain and OPM is plain relatively rarely.

Watson takes originalism seriously, engaging carefully and thoughtfully with originalist thinkers. He charitably explicates the appeal of OPM originalism while incisively showing that this appeal holds up only when OPM is plain and so supports a much narrower purview for the theory than its adherents want to claim for it.

“Plain OPM,” as Watson defines it, “is OPM’s indisputable core—the content that judges today can be confident that reasonable people at the time of ratification would have taken the constitution to communicate in context” (P. 4). Plainness is an exacting standard. It “requires that it is indisputable today that it was indisputable back then that the provision communicated a certain content and, further, that it is indisputable today that this content requires a certain disposition of the case at hand” (P. 12). As Watson elaborates, “[t]here are two ways that OPM can be open to reasonable dispute and hence fail to be plain: one arising from historical indeterminacy, and another from present-day uncertainty” (P. 12).

Watson examines various arguments that originalist thinkers have advanced to support the view that judges should enforce OPM, including (among others) the following: William Baude and Steven Sachs’s view that OPM constitutes the law and judges ought to apply the law; John McGinnis and Michael Rappaport’s view that OPM is likely to be highly desirable because that is the meaning that gained super majoritarian consent; and the rule-of-law argument that applying OPM supports the predictability and stability of constitutional law.

Watson argues that each of these arguments plausibly justifies the claim that judges ought to enforce plain OPM, but none supports the claim that judges ought to enforce OPM more broadly. Responding to the Baude and Sachs view, Watson observes that, while plain OPM might well constitute the law (according to a Hartian positivist view of the nature of law), OPM more broadly does not. Responding to the McGinnis and Rappaport view, Watson observes that, when OPM is unplain, we cannot be confident that a judge’s view of OPM will reflect the meaning that enjoyed super majoritarian support at the time of ratification. And, in response to the rule-of-law argument, Watson explains how, when original public meaning is unplain, it might be highly inaccessible and controversial, even among experts, and so there is no sure relationship between enforcing OPM and rule-of-law values.

In an elegant argument, delivered with impeccable clarity, Watson exposes a sizeable “gap between justification and application” in OPM originalism (P. 3). “The benefits of OPM originalism attach at most to enforcing plain—as in indisputable—original meaning,” he explains:

Yet the U.S. Constitution’s original meaning is far from plain with respect to many litigated questions, especially those arising before the U.S. Supreme Court today. Thus, the benefits that originalists cite to justify adopting their interpretive method in the abstract cannot justify adopting it in many of the concrete cases that they care about most (P. 3).

To illustrate the variety of cases in which OPM will not be plain, Watson focuses on examples in the domains of the President’s removal power, gun rights, and affirmative action, but it’s not hard to think of others. Accordingly, the normative force of OPM originalism is far narrower than originalists acknowledge.

Watson is not wholly unfriendly to originalism. In the final part of the article, he sets out what he calls “plain public-meaning originalism” as a viable alternative to OPM originalism. Watson’s plain public-meaning originalism “is not wholly toothless and remains true to originalism’s roots” (P. 45). According to this alternative theory of constitutional interpretation, “on questions of first impression, judges should fully enforce a constitutional provision’s plain OPM and should not overstep its plain OPM” (P. 53). To showcase the theory’s bite, Watson points out that it might call for a major overhaul of the Court’s substantive due-process jurisprudence, requiring, at least, “a different or more precise constitutional hook for Griswold v. Connecticut, Eisenstadt v. Baird, Roe v. Wade, and Lawrence v. Texas” (P. 51). I’m not sure about this conclusion, though, as all Watson has shown is that plain public-meaning originalism (which, to be sure, he does not endorse but rather offers originalists as a friendly amendment that they might want to incorporate) is a plausibly justifiable approach for cases of first impression. I doubt that many constitutional disputes are truly cases of first impression. Further, I think that precedent carries meaningful normative force. And so I suspect that OPM originalism’s normative force is even narrower than Watson gives it credit for.

In any event, the article is admirably constructive in spirit, and it should be a welcome contribution for originalists and non-originalists alike.

No-Claims

Mar 12, 2025 Michael GreenAdd a Comment

There is renewed interest in the categorization of fundamental legal relations offered by Wesley Newcomb Hohfeld.¹ McBride’s article is about the two problem children among the Hohfeldian relations—the liberty and, especially, the no-claim. Although his article is technical, it has significant consequences concerning our understanding of the nature of permissions (legal and moral).

Before introducing his argument—and the fascinating larger debate within which it is situated²—a Hohfeldian primer is needed. Here is the Hohfeldian table of legal relations with the disambiguating terms that many Hohfeld scholars now use in brackets:

One quick note about terminology: Like virtually all current Hohfeld scholars, McBride uses claim, instead of Hohfeld’s term right, for the first primary entitlement. (And, like most of them, he uses liberty instead of privilege for the second.) This use of claim allows right to be reserved as a generic term for all four entitlements: claims, liberties, powers, and immunities. But for the correlative of a liberty, McBride sticks with Hohfeld’s term no-right. Having changed right to claim, however, consistency would recommend using no-claim. Indeed, with right reserved as a generic term for all the entitlements, no-right is misleading, because someone with a no-claim can still have a right, such as a liberty. There has been a recent movement to using no-claim for this reason.³ I therefore use no-claim here, even though McBride (and the other participants in the debate of which he is a part) still use no-right.

We can focus on the primary relations. Assume that I have contracted with a workman to do work on my land. I thereby have a claim with respect to him to go on my land. And, correlatively, he has a duty to me to go on my land. This correlativity of claims and duties generates the following biconditional:

I have a claim with respect to the workman to go on my land if and only if the workman has a duty with respect to me to go on my land.

Furthermore, what McBride (following Matthew Kramer) calls the duality of duties and liberties generates the following biconditional:

The workman has a duty with respect to me to go on my land if and only if it is not the case that the workman has a liberty with respect to me not to go on my land.

Notice that in the duality biconditional, there is both external and internal negation on the right side: it is not the case that the workman has a liberty with respect to me not to go on my land. This is an identifying feature of logical duality.⁴ From the duality biconditional, we can conclude that because the workman does not have a duty to me not to go on my land, he has a liberty with respect to me to go on my land. And because he has a duty to me to go on my land, he lacks a liberty with respect to me not to go on my land.

Now for no-claims. Notice that concerning the correlativity biconditional for claims/duties, the content that the correlative relations modify is the same:⁵

I have a claim with respect to the workman to go on my land if and only if the workman has a duty with respect to me to go on my land.

But when Hohfeld introduces no-claims as the “correlatives” of liberties, in the liberty/no-claim biconditional, the no-claim has the negated content of the liberty:⁶

The workman has a liberty with respect to me to go on my land if and only if I have a no-claim with respect to the workman not to go on my land.

One question this brings up is exegetical. Was this a fumble on Hohfeld’s part? Did he mean to say something like:

The workman has a liberty with respect to me to go on my land if and only if I have a no-claim with respect to the workman concerning his going on my land.

There is an explanation of why he made this mistake. He meant “no-right” (here “no-claim”) as a neologism to capture the legal relation I have to the workman when he has a liberty with respect to me to go on my land. It is a new word with its own meaning. It does not mean “no claim”—that is, the absence of a claim. It is true that, given the duality of duties and liberties, the workman has a liberty with respect to me to go on my land if and only if he has no duty to me not to go on my land. And, given the correlativity of duties and claims, that means that he has a liberty with respect to me to go on my land if and only if I have no claim against him not to go on my land. But we are talking about a no-claim (with a hyphen) not the absence of a claim. Hohfeld arguably forgot that.

Another reason to treat Hohfeld as making a mistake here is that he spoke of a no-claim as the relationship a plaintiff has to a defendant when failing to state a claim.⁷. Assume that the workman has a liberty with respect to me to go on my land. That liberty would cause me to fail to state a claim if I sued him concerning his going on my land—not if I sued him concerning his not going on my land.

But another question is whether the unamended Hohfeldian framework is still superior. And that takes us into a broader debate about the nature of permissions—for liberties and no-claims are fundamentally permissive relationships. Standing in the background is whether Hohfeldian liberties are deontic nothings—solely the absence of duties—as Heidi Hurd and Michael Moore argue.⁸ If so, it makes no sense to speak of their correlatives. Sure, deontic relations (such as claims) have correlatives. But the absence of deontic relations doesn’t. For Hurd and Moore, if the workman has a liberty with respect to me to go on my land, all that means is that I have no claim with respect to him not to go on my land. It does not mean that I have a mysterious relation (a no-claim) with respect to him concerning his going on my land.

The Hurd/Moore approach explains why Hohfeld spoke of a no-claim has having the negated content of the liberty with which it is correlated. But it does so at the cost of denying the genuine existence of both liberties and no-claims.

To see why liberties and no-claims do have genuine existence, at least in the law, assume that the workman and I are New Yorkers, our act of contracting was in New York, and my land is in New York. Uzbekistan does not, and maybe cannot, legally regulate us. It neither gives the workman a legal duty to go on my land nor a legal liberty not to go on my land. Thus, the following duty/liberty biconditional would not obtain, because its left side would be false and its right side true:

The workman has an Uzbek legal duty with respect to me to go on my land if and only if it is not the case that the workman has an Uzbek legal liberty with respect to me not to go on my land.

What is more, there might be legal systems in which both a legal duty to φ and a legal liberty not to φ coexist. Conflicts between legal duties and liberties in the same legal system might occur, just as some believe that there can be conflicts of legal duties in the same system. The duty/liberty biconditional would not obtain because, in that system, its left side (the workman has a legal duty with respect to me to go on my land) would be true but the right side (it is not the case that the workman has a legal liberty with respect to me not to go on my land) would be false.

Indeed, not only might there be such a legal system, the United States arguably is such a system. Assume Texas enacts a statute, according to which a woman who aborts a fetus has a duty of compensation to the fetus’s estate and its heirs (excluding her). California, in refusing to enact such a statute, gives the woman a liberty with respect to the fetus’s estate and its heirs not to compensate. Under current views about states’ concurrent lawmaking power,⁹ both laws could apply to a Texan who got an abortion in California.

I offer these possibilities to show the importance of McBride’s topic. This is far from a merely technical debate. He argues, I think rightly, for understanding liberty/no-claim correlativity as having the same character as claim/duty correlativity.¹⁰ That would generate the following biconditional:

The workman has a liberty with respect to me to go on my land if and only if I have a no-claim with respect to the workman concerning his going on my land.

He calls this the “dual” reading, because it gives claims/no-claims the same duality as duties/liberties.¹¹

I will not offer the details of McBride’s argument in favor of the dual reading. His colleague at the National University of Singapore, Andrew Halpin, is a leading proponent of the unamended Hohfeldian approach (which McBride calls the strict Hohfeldian view). McBride assesses it and his dual alternative for consistency, comprehensiveness, and simplicity. He concludes that the strict Hohfeldian and his dual reading are equally coherent and comprehensive. (For the record it is very helpful to have the strict Hohfeldian view given this—partial—defense.) But he argues that, concerning simplicity (and elegance), the dual reading wins. I think he is right.

But my primary goal here is to identify the larger debate within which McBride’s argument is situated. McBride does not question these duality biconditionals:

The workman has a duty with respect to me to go on my land if and only if it is not the case that the workman has a liberty with respect to me not to go on my land.

I have a claim with respect to the workman to go on my land if and only if it is not the case that I have a no-claim with respect to the workman concerning his not going on my land.

But his position concerning the liberty/no-claim correlativity biconditional can lead one to question whether these duality biconditionals obtain at all.

Clarifying Legal Validity

Feb 12, 2025 Alma DiamondAdd a Comment

My father used to announce weekly household chore assignments on Sundays. The five of us agreed about the relative burdens: tidying the living room was a prized assignment, and washing the dishes bordered on punishment. Our family had an unarticulated sense of propriety in chore assignments, and challenges were common. In those Sunday debates, we were evaluating chore assignments in light of family norms defining the proper use of the assignment power: that it distributed burdens fairly, for example. None of us were enterprising enough to ever question the existence of a particular chore assignment, but if we had, the matter would be resolved by the family norms defining the existence conditions for chore assignments: that my father had uttered it on a Sunday, and so on. This latter matter would be different from the first: the question of how the chore assignment power is constituted is distinct from the question of how it is properly exercised. If we ever lost sight of this distinction, we would end up confusing the norms that govern chore assignments with the norms that constitute the assignment power. We would find ourselves making exactly the kind of jurisprudential mistake Thomas Adams adeptly identifies and resolves in his new article, Criteria of Validity.

The interminable debate between inclusive and exclusive positivism is supposedly about the possibility of moral principles forming part of the conditions on the validity of legal rules. Adams incisively points us to the difference between formal and substantive conditions. He argues that while exclusive positivists correctly identify the formal nature of the conditions on validity, inclusive positivists correctly identify the moral character of many of the substantive conditions on the lawfulness of existing enactments. Both sides ignore the crucial distinction between the conditions on a legal rule’s existence and conditions on its lawfulness, leading each to its own mistakes. Adams helpfully defuses much of the debate. In so doing, he also highlights a regrettably neglected distinction between two senses of “fundamentality” in our constitutional discourse: the formal enumeration of lawmaking powers is not the same thing as the substantive regulation of those powers.

Adams asserts the following “basic and fundamental” (P. 4) truth about law: it is “the result of human agency… it comes into existence through acts of willing, relying upon, or invoking norms” (P. 13). Simply, law exists in virtue of facts about human agency. Thus, the existence conditions for law are necessarily formal (as opposed to substantive) in nature: we find existing law by looking toward norms that designate certain human acts as enactments. To know if law exists, we simply need to know “whose will is to matter” (P. 13).

At the same time, we determine the justifiability, lawfulness, or legality of an existing enactment by looking toward other kinds of considerations: substantive conditions. These substantive conditions regulate lawmaking authority, but because they don’t pick out facts about human agency, they don’t constitute that authority. When an immoral law contravenes substantive constitutional constraints, it must still be set aside: it exists as valid law until a court declares otherwise. This is what exclusive positivists get right.

However, exclusive positivists incorrectly move from this truth toward the conclusion that moral norms are irrelevant to our interpretation and understanding of the law. This, Adams convincingly shows, confuses the distinction between formality and substance with the distinction between moral and non-moral substantive notions. It also draws an arbitrary distinction between substantive moral considerations and other kinds of substantive considerations, like those of rationality or prudence. We resort to all kinds of substantive materials when we interpret and evaluate our existing laws, including determining if they should be invalidated. This is what inclusive positivists get right. Where they go wrong is treating what is essentially a point about the substantive constraints on legality as a point about the existence conditions of legal rules.

Adams’s crucial deflationary move is to notice that the norms constituting legal authority are formal and distinguishable from the substantive norms regulating that authority. He also clarifies the relationship between the criteria of validity and constitutional law. Our constitutional law is indeed our most “fundamental” law. But our criteria of legal validity are “fundamental” in a different sense: they constitute law’s existence. As Adams points out: “it is precisely because the constitution does not form part of the ultimate criteria of validity that we are able to hold that it retains its status as ultimate law” (P. 17). If we can keep these two senses of “fundamentality” apart, I believe we would gain much clarity in contemporary constitutional theory.

Interesting questions remain. I suspect some might be unsatisfied with Adams’s distinction between the incorporation of moral concepts and the incorporation of morality in his discussion of exclusive positivism. I wonder if Adams might be a bit too quick to assert that the regulation of lawmaking power occurs only through the agency of the courts (P. 35). And it would be interesting to investigate the distinction between formal and substantive conditions in more detail: institutional exercises of human agency are perhaps complicated enough that the line between form and substance could become interestingly nuanced. However, these questions, and some of the other interesting ones Adams highlights toward the end of the Article, would form fruitful grounds for further jurisprudential study if we can shift away from the arguably ill-formed question about the grounds of law. Adams offers a very compelling argument for just this kind of shift.

Positivism, Natural Law, and Artifact Theory

Jan 16, 2025 Kenneth HimmaAdd a Comment

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.¹² 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.”¹³ As Finnis similarly observes, “There is no necessary or conceptual connection between positive law and morality.’ True, for there are immoral positive laws.”¹⁴

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.¹⁵ 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.”¹⁶

Thanks, but No Thanks

Nov 26, 2024 Felipe JiménezAdd a Comment

Many legal philosophers talk about and discuss “legal facts.” Mark Greenberg, David Plunkett, and Scott Shapiro, among many others, have framed their views in these terms.¹⁷ The expression “legal facts” is not new—one can find it, for example, with a different meaning, in Savigny’s System of the Modern Roman Law.¹⁸ But its use as a way of characterizing the central debates in jurisprudence between legal positivism and varieties of non-positivist views has become quite prevalent in recent years, and many scholars—myself included—have been happy to adopt it in their work.¹⁹

According to Mathieu Carpentier, this is a mistake: by framing debates about legal validity and the nature of law as debates about legal facts and their relationship to other (moral, social) facts, we are necessarily biasing things against legal positivism. This is particularly damning for scholars who are otherwise committed to legal positivism: talking about legal facts is, for these scholars, “just a self-inflicted blow” (P. 1.) By replacing the older debate about legal validity (and about whether social facts alone or also moral considerations were relevant to determine the validity of legal norms) with a debate about “legal facts,” non-positivist scholars like Mark Greenberg (and their unwitting positivist companions) have sneakily (or inadvertently) changed the subject of the debate, making it now more amenable to non-positivist responses.

But the problem is not just about the lack of neutrality of this framing. The framing is substantively unwarranted, according to Carpentier. In his view, the category of legal facts is simply too broad: it lumps together too many facts, some of which are plausibly connected to moral considerations. Not only that, but the picture of jurisprudence as concerned with the nature, status, and grounds of “legal facts” leads us to a metaphysical dispute about how to situate “some queer entities” (P. 6) within the overall structure of the world. We should avoid this dispute, along with its queer entities and an implausibly holistic picture of law, and go back to the traditional framing of jurisprudence as concerned with questions about the validity of legal norms.

Carpentier’s central move in this paper, to my mind, is his distinction between the existence and content of legal norms: the debate about legal positivism is about the existence (some would say validity) of legal norms—i.e., their existence as member norms of a particular legal system. Legal positivism only claims that the existence of legal norms turns on social facts. It does not say anything about the content of such norms, which plausibly turns on linguistic facts and, arguably, moral facts (P. 13.) In this respect, one can perfectly say that Article 953 of the French Civil Code is a norm that belongs to French law, without a clear sense of the content of Article 953 (P. 13-14), or that the rule set out in Pacific Gas & Electric Co. v. G.W. Thomas Drayage & Rigging Co. is a norm that belongs to California contract law, even though there might be legitimate disagreement about what content that rule contains. Seen from this point of view, it might very well be the case that the content of a norm (for example, a constitutional norm protecting “equal freedom”) turns on moral considerations. But the fact that moral considerations (and, perhaps, robust moral facts) are relevant to fix the normative content of our imaginary constitutional provision has no bearing on the question of whether this provision is, or is not, a norm of the relevant legal system (P. 21.) Legal positivism is, according to Carpentier, a limited claim about membership (or existence), not content. In terms of legal facts, then, legal positivism only cares about a limited subset of them: “facts about the existence/membership of norms” (P. 23.)

Carpentier also worries about the “metaphysical turn” towards grounding (typically, the grounding of “legal facts”) in general jurisprudence. Other scholars have expressed similar worries.²⁰ However, I think one merit of Carpentier’s argument is that it shows how this metaphysical understanding hurts jurisprudence as a form of inquiry concerned with a distinct set of philosophical questions that arise in the legal domain.

Overall, Carpentier’s argument is compelling and powerful. It has certainly convinced me to “beware of Greeks bearing gifts” in the future, and to think more carefully than I have about the framing of jurisprudential debates. One small concern I have is that, by focusing so much on the question of framing, Carpentier leaves out the possibility that positivism might be defended even within this metaphysical framework. The non-positivist position is that, once moral reasoning is relevant in any legal system to determine the content of the law, this ultimately makes it the case that legal facts are grounded in moral facts. But in fact, this does not follow. On at least some metaethical views, moral truths are independent of our grasp of them. When moral reasoning is relevant to determining legal content, moral truths do not show up as such. They only show up as the contingent moral judgments of legal interpreters. If that is the case, the fact that moral reasoning is required to determine the content of law only shows that psychological and sociological facts about the contingent moral judgments of legal interpreters are amongst the determinants of legal content. It does not show that moral facts as such play this role. Which is to say that legal positivism might very well be true even if it is interpreted—wrongly and imprudently, if Carpentier is right—as a theory about the metaphysical grounds of legal facts.