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.
