Barbara Levenbook

A philosophical anarchist believes that law cannot obligate. That means that it cannot impose a genuine obligation, which is a special kind of reason for action. In this article, Kenneth Ehrenberg makes the case that three popular theories about law, legal authority, or practical reason commit their proponents to philosophical anarchism. Though explicitly his discussion is limited to the three, there is enough in his arguments to show that it’s very difficult to avoid philosophical anarchism in your theory about authority, reason-giving, or the normativity of law. If you think that law’s reason-giving force comes ultimately from some non-legal source, you’ve embraced this form of anarchism.

Readers will not be surprised to learn that those who deny that law has practical authority, insisting instead that its authority is only theoretical, are philosophical anarchists. They acknowledge that law cannot create novel reasons for action. It follows that law cannot create obligations, either. It only provides reasons for belief. The big surprise is that natural law theory of the Mark Murphy variety falls into this category.¹ The appeal of such a theory has long been that it vindicates the law’s normative language of rights and obligations. It does so by vindicating the intuition, held by many, that legal rights and obligations are real rights and obligations, and thus, genuine reasons for action. It might seem, then, that law – that is, human or positive law — creates such reasons. But Ehrenberg makes a persuasive case that, given the standard natural lawyer commitment to the unity of value, any genuineness in the obligation stems from pre-existing or background principles (of the natural law, of reason, or directly from God). (Positive) law does not, then, generate genuine reasons for action; and so, it cannot obligate. Something else is doing the work.

The third theory is about practical authority. On this theory, advocated by David Enoch, all practical reason-giving is a triggering of a dormant or a pre-existing conditional reason. Allegedly authoritative directives, such as those found in law, don’t produce practical reasons absent a pre-existing independent reason in a conditional form. That reason’s normativity, according to Enoch, ranges over the whole conditional. So law cannot create new practical reasons. Ehrenberg argues that Enoch’s detour through legitimate authority fails to help him. Enoch treats legitimate authority as creating a combination of different types of reasons, and since new reasons cannot be built from pre-existing reasons, law cannot create obligations.

But take heart, those in the “law provides genuine novel reasons” camp: there are ways not to be a philosophical anarchist. According to Ehrenberg, Mark Greenberg may escape philosophical anarchism. He may identify law and morality so closely that the creation of a legal norm is eo ipso the creation of a moral norm. Ehrenberg also argues that Joseph Raz can escape philosophical anarchism, largely due to the element of exclusionary reason Raz sees in authoritative directives. Ehrenberg suggests that the normativity of an authoritative directive comes not just from the dependent reasons that justify it, but from its role excluding acting on some contrary moral and prudential reasons. That exclusionary reason is created by the directive, and so, is entirely novel.

This last result, combined with Ehrenberg’s other arguments, seems to me to present an interesting paradox: a form of legal positivism is compatible with law being a source of novel genuine reasons to act, while the standard natural law theory, in both the weak and the strong version, is not. This is something to bear in mind if you think law makes a difference of a certain robust sort in practical reasoning.

As a last measure, you might want to challenge some of Ehrenberg’s arguments. But this will not be easy. Ehrenberg has anticipated many objections and countermoves. Perhaps your best bet would be to challenge his arguments’ assumptions about the individuation of reasons, as Ehrenberg admits. But you’d have to do this with a persuasive account of how to individuate reasons in hand. More precisely, you’d have an account of how the normativity they carry is attached. You’d have to argue that, when law requires a specific action that solves or makes salient a solution to a pre-existing problem, and this gives its subjects a reason to perform that specific action, its normativity does not come from any prior reason to solve that problem. And that gets us into territory most of us are ill-equipped to explore.

1. On that natural law view, “necessarily, law is a rational standard of conduct.” Mark C. Murphy, Natural Law Jurisprudence, 9 Legal Theory 241, 244 (2003).