Thanks, but No Thanks

Felipe Jiménez

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.¹ 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.² 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.³

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.⁴ 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.

1. Mark Greenberg, How Facts Make Law, 10 Legal Theory 157 (2004); Mark Greenberg, Hartian Positivism and Normative Facts: How Facts Make Law II, in Exploring Law’s Empire: The Juris. of Ronald Dworkin (2008); David Plunkett, A Positivist Route for Explaining How Facts Make Law, 18 Legal Theory 139 (2012); Scott Shapiro, Legality (2011).
2. Friedrich Karl von Savigny, System of the Modern Roman Law (1867).
3. See, e.g., Mitchell Berman, How Practices Make Principles and How Principles Make Rules, 28 Journal of Ethics and Social Philosophy 299 (2024); Samuele Chilovi, Grounding-Based Formulations of Legal Positivism, 177 Philosophical Studies 3283 (2020); Tomasz Gizbert-Studnicki, Social Facts and Legal Facts: Perils of Hume’s Guillotine, in The Cambridge Companion to Legal Positivism 395 (2021); Adil Ahmad Haque, Jurisprudence in Extreme Cases, 35 Temple International & Comparative Law Journal 11 (2021); Felipe Jiménez, Legal Positivism for Legal Officials, 36 Canadian Journal of Law & Jurisprudence 359 (2023).
4. See, e.g., Brian Leiter, Critical Remarks on Shapiro’s Legality and the “Grounding Turn” in Recent Jurisprudence, available at SSRN (Sept. 16 2020); Alexander Somek, Authoring, Grounding and Unknowing What the Law Is, 14 Jurisprudence 541 (2023); Bosko Tripkovic & Dennis Patterson, The Promise and Limits of Grounding in Law, 29 Legal Theory 202 (2023).