May 14, 2025 Andrew Halpin
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.
Apr 15, 2025 Nina Varsava
Bill Watson, The Plain Meaning Fallacy, __ B.C. L. Rev. __ (forthcoming, 2026) available at SSRN. (Feb. 1, 2025).
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.
Mar 12, 2025 Michael Green
There is renewed interest in the categorization of fundamental legal relations offered by Wesley Newcomb Hohfeld. 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 situated—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:
| primary entitlement | correlative |
| right [claim] | duty |
| privilege [liberty] | no-right [no-claim] |
| higher-order entitlement | correlative |
| power | liability |
| immunity | disability |
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. 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. 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:
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:
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.. 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. 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, 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. 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.
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.
Cite as: Michael Green,
No-Claims, JOTWELL
(March 12, 2025) (reviewing Mark McBride,
Keeping Hohfeld Simple, 43
Law and Philosophy 451 (2024)),
https://juris.jotwell.com/no-claims/.
Feb 12, 2025 Alma Diamond
Thomas Adams,
Criteria of Validity, __
Mod. L. Rev. __ (forthcoming 2025), available at
SSRN (Oct. 14, 2024).
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.
Jan 16, 2025 Kenneth Himma
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. 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.” As Finnis similarly observes, “There is no necessary or conceptual connection between positive law and morality.’ True, for there are immoral positive laws.”
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. 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.”
Nov 26, 2024 Felipe Jiménez
Mathieu Carpentier,
Against “Legal Facts", available at
SSRN (Apr. 11, 2024).
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. 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. 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.
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. 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.
Nov 1, 2024 Sean Coyle
This brilliant and highly interesting essay examines the nature of polities that place central emphasis on the rule of law and thereby upon the language of rights, a language which “smothers and extinguishes” alternative forms of ordering. (P.553.) In doing so, the language of rights erodes its own foundations, leading to a society of no rights but instead of technocratic reasoning. Rights are peremptory. Simmonds describes the sharp distinction between human goods (e.g. it would be good to do x) with rights(I have a right to do x). The distinction is not metaphysical but the result of artifice that underpins our familiar form of association. (P.553.) This does not exclude those aspects of human flourishing that are better understood in terms of goods, values, or interests, where peremptory reasoning gives way to weighing and balancing. In setting out the issue in this way, Simmonds puts a significant new perspective upon arguments he has been advancing for some time: the relationship of rights to ordinary forms of human activity, the mutability of rights discourse, and a preference for the will theory of rights over the interest theory.
Simmonds is appalled by recent trends in constitutional law, which mistake the relative importance of rights for their peremptory force. Where such force is eliminated in favour of questions of importance or proportionality, the traditional hallmarks of legality and legitimacy are significantly eroded. (P.556.) Simmonds returns to this theme at a later point in the article.
Simmonds argues passionately that law should be understood as a body of rules operating within a domain of fidelity, a concept familiar to readers of Lon Fuller and which applies not only to judicial reasoning but to the legislative process as well: the notion of fidelity displacing that of a rule of recognition. (P.557.) This aspect of Simmonds’ argument is a fairly recent departure from his earlier work, which emphasized (alongside the work of the legal historian AWB Simpson) the common law’s fundamental nature as a body of ever-evolving reasons for decision. The central reason advanced is that “[s]ound legal thought always involves an attempt to create and sustain a just and coherent body of law that serves the common good, and this enterprise is always endangered by the diversity and particularity of moral considerations that might be considered to be of relevance.” (P.557.) Legal rights claims do “both more and less” than claims that a given action is good. (P.558.) This is because rights claims may be contrary to good, and thus less: the right of a wealthy person to a sum to be taken out of the purse of one in poverty (surely an instance of Aquinas’s doctrine that it is sometimes necessary to forgo one’s right in order to avoid scandal or disturbance. [scandalum vel turbatio]: ST I-II.96.4 ad 3.) Or they do more because they articulate standards that are insulated against the broader flow of practical reasoning. (P. 558.) But Simmonds suggests a distinction between the peremptory force of rights and their (lack of) absolute force.
How does this distinction preserve the thought that rights are other than mere counters to be moved in good-centric arguments generally? Simmonds proposes only a highly schematic response to this problem, referring to what he calls the “relational aspect of rights”; roughly, Y fails to observe X’s right in circumstances that highly justify the breach (create some good or avoid some evil). (P.559). But the language of rights demonstrates that such breaches come at a cost: X is denied what she is due or (better)owed. Thus, there are some rights that it is possible to breach, but others that may not be breached in any circumstance. (P.559.) I am not sure that this solves the problem, which some may (incorrectly) take as a distinction between the protections of the criminal law and those of private law, given the article’s example of intentional killing. But the general picture should be of interest to anyone who practises or theorizes about law, that of the need to locate rights within a broader moral framework of values, common good(s), and collective human flourishing, a framework which must not be entirely displaced by notions of right and in which, presumably, rights are not always the decisive idea (P.560.) The key difference is that rights are “respected or honoured” rather than “advanced or promoted” (but does not X advance her right against Y? Is that not an important feature of the “language of rights”?).
Rights are not correctly understood, but they are of central importance as being amongst the most fundamental building blocks of society (P.563.) Simmonds argues that “we can see that the peremptory force of rights is dependent upon the fact that rights are not self-standing individual interests, but are essentially relational: the bond created by the right is at least as important as any interest protected by the right” (P.565.) This relational aspect of rights is brought out by Hohfeld’s analysis. If we do not pay attention to Hohfeld, we may think that if X has a right to A and Y has a right to B, and A and B conflict, then we are in the impossible situation that the rights of X and Y conflict. How can that be? The answer is that X may have a right to A generally, but no such right against Y: Simmonds gives the example that I have a right to be free from assault generally, but not against my opponent in a boxing match (P.568.)
Over the unfolding pages, Simmonds sets out a sense of the consequences of an abandonment of Hohfeld’s analysis, an attempt to restore a pre-Hohfeldian notion of rights as internally complex. Thus, for example, a right of free speech would then be deemed to be the basis for the imposition of duties on others to respect the right: when, in fact the “right” may turn out to be a mere permissibility (liberty, privilege) also held by others (you may talk, but I may talk louder). The result is a “toxic monoculture” in which the notion of right is “extended to any good or interest which is being pressed as of considerable importance” (P.571.) In the area of constitutional rights, increasingly interests are deemed to form rights against which is to be applied a broad doctrine of proportionality. The result is stark: “A polity departs from the rule of law not only when judges and other officials fail to apply the law, but also when the law they apply confers upon them extensive discretionary powers” (P.572.) Thus, finally, “To collapse the distinction between rights and goods is to remove an important basis for the state’s legitimacy, and to convert the state into a technocratic instrument for managerial social policy” (P.573.)
In short: this is a rich and deeply interesting essay, the implications of which ought to give pause to academic and practising lawyers alike in whose hands law is steadily sliding into a mere instrument of a technocratic state, giving up the idea of law as a rich and subtle aspect of human civility.
Oct 21, 2024 Carlos Bernal
Prof. Moore claims that the interpretations of the International Covenant on Civil and Political Rights by the Human Rights Committee, the body overseeing states’ compliance with that instrument, do not consistently follow the international law rules of treaty interpretation of the Vienna Convention of the Laws of the Treaties. Those rules command treaty bodies and states to interpret treaties according to the text’s ordinary meaning, while also considering context and purpose. Instead, the Committee plays an influential role by interpreting the Covenant in an evolutionary way, according to its own normative goals.
This practice is common among other human rights bodies, such as the Interamerican Human Rights Commission, and rapporteurs. This practice gives rise to a jurisprudential question, namely, about the nature of the human rights standards that treaty bodies and rapporteurs create by means of their normative interpretations.
A recent example underscores this issue. On 28 June 2024, the Supreme Court of the United States decided City of Grant Pass, Oregon v Johnson. The issue was whether laws restricting encampments on public property (and backing the restriction with fines and imprisonment up to 30 days) are an instance of cruel and unusual punishment that violates the 8th Amendment to the United States Constitution. A majority (Gorsuch, Roberts, Thomas, Alito, Kavanaugh, and Barrett) concluded that this was not the case. The majority appealed to an original interpretation of “cruel and unusual” as features of methods or kinds of punishment calculated to “add terror, pain or disgrace” and that are “out of use.” Fines, prohibition from encamping, and imprisonment up to 30 days do not carry those features. Furthermore, they are common. The dissenters (Sotomayor, Kagan and Jackson) disagreed. They claimed that homelessness is an involuntary status. Hence, criminalizing homelessness is cruel and unusual because what is criminalized is not an action but the status of being homeless, fulfilling an essential bodily function -sleeping- in a public space.
This ruling is at odds with the “official” interpretation of Article 7 of the International Covenant on Civil and Political Rights, which prohibits the use of cruel, inhuman, or degrading treatment or punishment. The United States ratified this treaty on 8 September 1992. Concerning Article 7, the United States made a reservation limiting the scope of this provision to “cruel, inhuman, unusual or inhumane treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution.” Now, as official interpreter of the ICCPR, the Human Rights Council, in the Fifty-sixth session, 18 June–12 July 2024, approved the Report of the Special Rapporteur on extreme poverty and human rights: “Promotion and protection of all human rights, civil, political, economic, social and cultural rights, including the right to development Breaking the cycle: ending the criminalization of homelessness and poverty”. That Report asserts that the criminalization of homelessness violates the prohibition of cruel, inhuman or degrading treatment or punishment, entrenched in Article 7 of the ICCPR, in particular: (i) when a person is repeatedly evicted or incarcerated; (ii) when arrests or move-on orders result in a persistent state of fear or sleep deprivation; (iii) when personal belongings or merchandise are confiscated or destroyed; or (iv) when evictions from street encampments or squatted buildings are carried out without the provision of any adequate housing alternative.
These standards are a clear outcome of an evolutionary and normative interpretation of the Covenant. They do not derive from the text or history of the Covenant. Furthermore, the link to context and purpose is, at least, a matter of discussion. It is also questionable that, due to the reservation, after the enactment of the Supreme Court judgment, the U.S. is bound by those standards. However, can we claim that, before that decision was handed down, the Court was bound by those standards that were discoverable through interpretation? Are they also binding on other nations?
Concerning this matter, it is possible to use the concept of international human rights standards in both a narrow and a broad sense. The narrow sense encompasses only provisions of legally ratified international human rights treatises. The broad sense includes those provisions and the rules that treaty bodies (such as international courts, commissions, councils, and rapporteurs) specify as treaty interpretation. Formalist international law theories only accord legal nature to the international human rights standards in the narrow sense. Radical anti-formalist theories attribute this nature to all human rights standards in the broad sense.
Both theories seem highly implausible. On the one hand, there are some treaty bodies’ rules that the international community considers as binding, even if they are normative interpretations of human rights treatises. On the other hand, some treaty bodies’ rules are just regarded as ideological desiderata of factions dominating those bodies. Hence, the key question is what is the nature of international human rights treaty bodies’ normative interpretations? This question might have an ontological and a normative dimension. The ontological question is whether treaty bodies’ normative interpretations are legal norms which establish obligations to the treaty parties or that are domestically applicable. The normative question is whether those rules should be regarded as binding in that sense.
A conceptual analytical legal theory can ground an answer to the ontological question. Those interpretation are binding if the international community regards those as directive to follow in the practice of international law. Concerning the normative question, Prof. Moore claims that state parties’ dialogue in international forums can grant normative legitimacy to the evolutionary interpretations of the treaty bodies. Naturally, the substantial normativity of those standards always remains open to criticism and change. A key task of the jurisprudence of human rights is to provide grounds for that deliberation.
Sep 3, 2024 Brian Bix
The place of legal normativity in legal philosophy is distinctive and strange: there is a widely shared (though not universally shared) view that theories about the nature of law should “explain legal normativity,” but there is sharp disagreement regarding both what “legal normativity” entails and what it would mean to “explain” it. In Shadows or Forgeries? Explaining Legal Normativity, Alma Diamond offers a helpful overview of the current literature, along with a radically different approach to the issue.
In the first part of the article, Diamond explores the three different understandings of “legal normativity” currently prevalent in the jurisprudential literature: (1) the view that law gives its subjects (“real” or “robust”) reasons for action; (2) the observation that legal language implies that law gives subjects reasons for action; and (3) the idea that law must be the sort of thing that is capable of giving reasons for action, and/or that law, by its nature, implicitly claims to give us reasons. One can see that in all three alternative approaches, the focal point is a focus on reasons for action: whether the law gives us reasons, whether it purports to give us reasons, or what follows from its being the kind of thing that might give us reasons. After Diamond provides a detailed overview and critique of the three alternatives, she argues that all three approaches “take for granted that the appropriate explanatory primitive is the notion of a ‘robust’ reason for action.” (P. 64.)
Many discussions of legal normativity raise questions about the extent to which law, as law, could always give subjects reasons for action, whether law can be like the parents who tell the child challenging their authority, “because I said so, that’s why!” Proving that law is robustly normative does seem theoretically to be an uphill battle. And this is where Diamond’s article is sharply different. Instead of starting from what one would need to show that law is robustly normative (or why or how it can be), the article’s alternative starting point is that “[l]egal practice just is a normative practice” (P. 66, emphasis in original), and that this should be our “explanatory primitive.” (P. 66.)
The fact is that many of us do treat the law’s prohibitions, prescriptions, and permissions as at least presumptively (defeasibly) reason-giving, and Diamond argues that we should explore this phenomenon theatrically (not as a matter of sociology or psychology). The article calls this a “practice-first approach,” and traces the idea to H. L. A. Hart, while noting the relevance of a wide range of other thinkers, including Ludwig Wittgenstein, Robert Brandom, and Christopher Möllers. The basic argument is that a feeling of community is connected to a shared normative world: “to recognize that one has a situation in common with other agents is to recognize that there are such things as normative constraints.” (P. 74.)
Diamond cautions that this article is “only a sketch” and only “the start” of exploring this option. (P. 75.) Similarly, the article sets its sights not on rebutting the current general approach to writing about legal normativity, but rather merely attempting “to show that there is an alternative.” (P. 77.)
Going forward, it might be productive to consider either the connections or the contrasts between Diamond’s “practice first” approach to legal normativity and the approach David Dyzenhaus elaborated in his recent book, The Long Arc of Legality. For Dyzenhaus, as for Lon Fuller, there is a normativity distinctive to law, based on reciprocity between rulers and subjects; this “internal” set of normative standards separate from the “external” normativity of conventional moral standards we also bring to our evaluations of law. One can see that for Dyzenhaus, as for Diamond, law simply does create its own normativity.
Jul 29, 2024 Barbara Levenbook
The title of this review should begin, “It should go without saying.” Unfortunately, given a spate of recent fashionable criticisms of retributivism—by Martha Nussbaum, Vincent Chiao, Erin Kelly, and others—the thesis defended in Dr. Leora Dahan Katz’s article needs saying and defending. That thesis is that there is no theoretical incompatibility between commitment to a retributive justification of punishment and promoting human welfare; and there is no evidence (at least, none provided by antiretributivists) of an empirical incompatibility in adopting a retributive rationale for punishment and yet trying to promote (albeit not to maximize) human welfare (e.g., by addressing human needs before criminal conduct occurs, educating about sexual assault, or, I would add, showing mercy or compassionate release under unusual circumstances). There is yet no reason proffered to think that the retributive theory of punishment needs replacing by a welfare-oriented one.
Dahan Katz carefully disentangles various arguments contrary to her thesis: causal, psychological, conceptual. She refutes, with particular precision and philosophical sophistication, an axiological argument to the effect that retributivism is committed to viewing human suffering as having intrinsic, not merely instrumental, value, and that this is incompatible with a welfare orientation. Her refutation involves what is, given the antiretributivist literature, a much-needed reminder about the precise contentions underlying various forms of retributivism.
As Dahan Katz notes, retributivism has the resources to denounce mass incarcerations (except in the theoretically possible case in which all incarcerated persons deserve their incarceration) and excessive (understood as retributively unjust) and degrading punishment. Retributivism,Dahan Katz further notes, provides no obstacle to objecting to (and no reason for) racial discrimination in sentencing and many of its ill effects. Most forms of retributivism license, but do not require, punishing those who deserve punishment. Desert is treated by these theories as a pro tanto consideration, rather than one that excludes considerations of exploitation of the deserving guilty, (the distributive injustice of) discrimination among the set of convicted and deserving guilty, and so on.
Admittedly, in practice, the moral duty to discover the facts determining whether and how much a given individual deserves punishment can be exceedingly difficult to fulfill, even if those who sentence are trying to assess desert in good faith. (In this connection, though Dahan Katz does not make this point, it is worth reminding the reader that just desert is morally nuanced, embracing many considerations besides justifications, such as lack of maturity and a host of other mitigating factors.) So, one might think, maybe sentencing juries and judges (and legislatures enacting mandatory sentences) ignorantly overreact, and this gives us a reason to jettison retributive rhetoric in our society.
But Dahan Katz makes the case that, if blame is to be laid for the perceived excesses of the American criminal “justice” system, as some of these authors wish to do, it cannot be fairly laid at the feet of retributive theory, embraced largely by academics but not much outside academic circles. There is also (and more plausibly?), Dahan Katz points out, the appeal to the dangerousness of criminals (and, I would add, appeals to fear and prejudice) by decades of political calculators. Appealing to dangerousness is comfortably compatible with a consequentialist rationale for punishment—one that alleges that human welfare (in the aggregate) is best served by deterring and incapacitating the dangerous among us, under some circumstances with extreme measures. This is a welfare orientation that some—perhaps all?—of Dahan Katz’s opponents would not willingly embrace.
