In this provocative article, Dan Priel offers a naturalist approach to thinking about law. This naturalist approach, in turn, leads to two ambitious lines of arguments: first, rejecting many traditional jurisprudential inquiries, and, second, providing a highly unconventional view about the relationship of morality and law.
Naturalism (not to be confused with “natural law theory”) has been defined in different ways. Early in the article, Priel offers a useful (if, as he notes, imprecise) summary: naturalism is the view that “explanation[s] of [human] actions should be continuous, and of the same kind as, explanation of the nonhuman part of nature.” (P. 2.) Naturalism within legal philosophy has, for some time, been associated with Brian Leiter. However, Priel criticizes Leiter’s approach as being little more than an argument for (existing) empirical work on law, while offering no tasks for legal philosophy. As will be noted, Priel agrees that naturalism rejects some traditional jurisprudential topics, but he believes that there remains room for, and, indeed, a need for, a distinctively naturalist jurisprudence.
Priel is dismissive of the type of conceptual analysis that has been central to contemporary analytical legal philosophy (and featured especially by those more inclined towards legal positivist positions, like Joseph Raz, Andrei Marmor, and Scott Shapiro). Priel correctly points out that there is something inherently problematic about offering claims about the “necessary” or “sufficient” attributes of an ongoing social practice like law. He writes: “we have a debate with two moving parts: There is disagreement on both the objects in the world that are laws, and on the account of law. And as a result, no argument can be decisive against a competing view.” (P. 8.)
It should be noted that in this part of the argument Priel occasionally overstates his case. For example, he states that “it is notable that philosophers do not think that philosophy has much to say with respect to ‘what is…’ questions on other human creations.” (P. 5.) He thus overlooks a substantial literature on topics like “what is art?” and “what is democracy?” Even the author’s reduction–why do philosophers not inquire into the nature of golf (Pp. 5, 6, 7)?–has a relatively recent counter-example in a dispute from 2001 (Casey Martin had a medical condition that required him to use a golf cart rather than carrying his own golf bag, but the administrators of the professional game would not allow it–there was a mixed legal and philosophical question, for the purposes of the American with Disabilities Act, regarding whether carrying one’s own clubs was integral to what counted as “golf”.)
Priel does not doubt that there are important philosophical questions to be asked in connection to the nature of law. However, he doubts that the questions that need to be asked are distinctive to law. For example, we should inquire about metaphysics (ontology, grounding) of law, but there is, he argues, no reason to assume that the answer in regards to law will be different than that for other social practices. Similarly, Priel contends, for all the inquiries regarding the “normativity” of law. He rejects the view, put forward by a number of legal theorists, that there is something distinctively troubling about the way mere facts of legal official actions appear to create reasons for action. As Priel points out, we are surrounded by human actions apparently creating norms (of different types): from promises to etiquette to proper language use.
Priel would redirect the focus of jurisprudence: “instead of thinking of jurisprudence as unique because it plays a preliminary role to other inquiries, jurisprudence can make a unique contribution to our understanding of law because it presents the bird’s eye view on law.” (P. 21.) The author describes his own approach as “artificial law theory,” not (primarily) as a contrast to “natural law theory,” but to reflect a focus on law as artifact–as a human creation meant to serve certain purposes. (“Artifact” appears to be the current fashionable focus for legal theory: it is central to recent natural law writings of Mark Murphy and Jonathan Crowe, and it was the focus of a 2018 collection, Luka Burazin, Kenneth Einar Himma, and Corrado Roversi (eds.), Law as an Artifact (2018).)
The second half of the article offers a novel view about the connection between law and morality: but not the well-worn path of the debates between legal positivists, natural law theorists, and others, regarding whether there are or are not necessary moral/evaluative aspects to systems or norms that count as “law.” As a threshold matter, Priel, as a naturalist, is skeptical of the objective view of morality (and the sharp distinction between conventional morality–social norms–and critical morality) that is assumed in most of those discussions. Additionally, Priel wants to question the standard view that law does or should reflect morality: that (e.g.) contract law should, to the extent possible, reflect promissory morality, and that tort law should reflect moral views about liability and compensation.
The picture Priel paints is one where law often diverges from morality, and, in doing so, helps to change and improve morality. The divergence of law and morality in part reflects the artificial nature of law–its technologies of procedure and enforcement, and the developments that follow through doctrinal legal reasoning. Additionally, legal rules and legal enforcement can overcome the well-known problems of self-serving biases and other cognitive biases. As Priel writes, “Morality is a poor guide to action, and it is the poor guidance provided by morality that law fixes.” (P. 33.)
Priel’s vision of legal philosophy ultimately is expansive, incorporating knowledge and tools from other disciplines, and seeking the sort of explanations currently associated with other approaches, like sociology of law and cultural studies:
It includes within its remit questions about the role of ideas and culture in legal development, in the relationship between human nature and law, between technological change and jurisprudential change. It includes discussing how the institutional perspective ties with the individual one (how what “the law says” on a certain issue is related to the attitudes of individuals); the ways legal cultures (legal families, legal traditions) are created, how they are sustained, and how they evolve; and the relations between different areas of law and law in general. (P. 21.)
So while Priel would take away from legal philosophers old discussions about “what is law,” he still leaves jurisprudence with a great deal of work to do.