- Brian Leiter, The Demarcation Problem in Jurisprudence: A New Case for Skepticism, 32 OJLS 1 (2011).
- Dennis Patterson, Alexy on Necessity in Law and Morals, 25 Ratio Juris 47 (2012) available at SSRN.
- Frederick Schauer, On the Nature of the Nature of Law (2011) available at SSRN.
A number of prominent contemporary legal philosophers identify as their central task the search for the necessary features of the nature of law. Joseph Raz writes, “The general theory of law is universal for it consists of claims about the nature of law, and about all legal systems, and about the nature of adjudication, legislation, and legal reasoning, wherever they may be and whatever they might be. Moreover, its claims, if true, are necessarily true.”1. Scott Shapiro’s Legality is an extended treatment of the nature of law: “When asking about the nature of law…we want to know which properties law necessarily possess in virtue of being an instance of law[.]”2.
Along similar lines, Julie Dickson insists that a general theory of law must “consist of propositions about the law which are necessarily true, as opposed to merely contingently, true,” because “only necessarily true propositions about law will be capable of explaining the nature of law.”3. This search for the nature of law is not limited to legal positivists. Anti-positivist Robert Alexy pursues the same project (though contesting their answers): “Thus, for the question, ‘What is the nature of law?’ one may substitute the question “What are the necessary properties of law?”….Essential or necessary properties of law are those properties without which law would not be law.”4.
The most puzzling aspect of this project is not the answers these various theorists produce in the pursuit of their quest but the assumption upon which it hinges: that law has a nature. Prior to embarking on a search for the nature of law one would think that the first order of business is to set forth an argument establishing that law has a nature. Without such an account, it is unclear what is being sought or whether there is something to be found. Despite the apparent necessity to tackle this preliminary question, theorists who pursue this aim have heretofore largely assumed it.5.
As if called forth by a growing frustration with these claims, a series of challenges has emerged in recent months: Brian Leiter’s The Demarcation Problem in Jurisprudence: A New Case for Skepticism;6, Dennis Patterson’s Alexy on Necessity in Law and Morals;7, and Frederick Schauer’s On the Nature of the Nature of Law.8 [And I will mention my What is General Jurisprudence? A Critique of Universalistic Claims by Philosophical Concepts of Law;9. Brian Bix raised probing questions on these issues earlier.10.] Each of these pieces, approaching from different angles with different targets in mind, raise probing skeptical questions about the notion that law has a nature with essential and necessary elements. I include all three in this review because all are excellent, concise, and should be read together by anyone thinking about these issues.
Leiter’s piece is the most openly skeptical. The concept of law, he points out, is a human artifact. “Artifact concepts, even simple ones like ‘chair,’ are notoriously resistant to analyses in terms of their essential attributes, both because they are hostage to changing human ends and purposes, and because they cannot be individuated by their natural properties—unlike say natural phenomena like “water,” which just is H2O.”11. Leiter reminds us that 20th century philosophy of science struggled, and ultimately failed, to identify the essential features that would distinguish science from non-science—just as legal philosophers have long struggled to distinguish law from non-law. Science, a human enterprise with a variety of characteristics that are not universally shared among all branches, has proven too messy (too human) to be pared down to essential and necessary qualities.
“If, in the history of philosophy,” Leiter asks, “there is not a single successful analysis of the ‘necessary’ or ‘essential’ properties of a human artifact, why should we think law will be different?”12. Leiter recognizes that a history of failure is “not a conclusive refutation,”13. but still, it does suggest that the quest merits profound skepticism. He suggests that legal philosophers are once again behind the curve on philosophical issues: “the jurisprudential Owls of Minerva, bringing considered philosophical opinion in its maturity (sometimes, alas, on its death bed) to bear on theoretical questions that arise distinctively in the legal realm.”14. In searching for the essential features of the nature of law, jurisprudents are pursuing something previously abandoned by philosophers as unfruitful if not chimerical.
In contrast to Leiter’s more sweeping arguments, Patterson conducts a careful textual analysis to critically scrutinize Alexy’s assertions about the nature of law. Alexy denies that law is a “natural kind,” Patterson observes, so “what, then, is Alexy’s argument for ‘necessary’ features of law?” Breaking down a passage in which Alexy presents his case, Patterson argues that each step in the argument is either definitional, a restatement, a bald assertion, or question-begging.15.
Patterson then takes up the two features Alexy identifies as “essential” to the nature of law: coercion and rightness. Alexy writes, “Coercion is necessary if law is to be a social practice that fulfills its basic formal purposes as defined by the values of legal certainty and efficiency. This practical necessity is the reason why the conceptual necessity implicit in the use of language is based not merely on a convention but also on the nature of the thing to which the concept refers.”16. Patterson makes two basic points in response. First, it is controversial whether coercion is a practical necessity of law; second, “practical necessity” is a softer form of necessity than “conceptual necessity,” both invoked by Alexy, and the relationship between the two is left obscure. It appears that for Alexy coercion is practically necessary but not conceptually necessary to law—or is the former somehow anchored in the latter?
Patterson closes with a discussion of Quine’s famous critique of the analytic-synthetic distinction, which rendered problematic arguments about necessity grounded in analytic statements. Since Alexy builds his argument about the nature of law on necessity, analyticity, and the a priori, Patterson observes, in it incumbent on him to address Quine’s criticisms. Patterson does not assert that arguments from necessity cannot be made about the nature of law, only that Alexy “owes us a complete account of what he means by ‘necessity.’”17.
Schauer poses the central issue—what does it mean to assert “law has a nature”? “The question about the nature of a nature, and thus about the nature of the nature of law, invokes numerous subsidiary questions.”18. Is there a uniquely philosophical sense to their talk about the “nature of law” or is it a commonsense claim that legal philosophers answer using philosophical tools? Must we answer this by identifying necessary (essential) and sufficient conditions for its existence or is it better explained through the identification of common characteristics? And so on.
At the very outset, Schauer has trouble pinning down the notion at issue because most legal theorists who make claims about the nature of law have yet to explain precisely what they mean by this.19. As Schauer observes, Julie Dickson and Scott Shapiro appear to simply assert that the nature of law” just is, by definition, the set of individually necessary and jointly sufficient conditions for its existence.”20. If that is their position, Schauer objects: “the soundness of that view must emerge from an inquiry, and cannot be right simply and solely because of how we define the word nature.”21. Without knowing more about the possible technical philosophical meaning behind the assertion “law has a nature,” Schauer stipulates that “nature” is meant in the ordinary sense of the term, and proceeds to analyze it with this understanding.
He then offers a series of generalizations—e.g. birds have feathers—showing that while each is true, none is universally true. His point is that “general truths are different from necessary truths.”22. Outside of natural kinds, it is not clear that there are necessary or essential properties of anything, particularly so in connection with social constructions (human artifacts) like law. Law typically has courts, lawyers, and coercion, Schauer notes, but that is not to say that these are essential or necessary for law. We can think of examples of law, like customary law, that lacks one or more of these features. (In response to Schauer, they would assert, I believe, that whatever lacks the essential features of law is not law, properly understood, regardless of whether people might think of it as law.)
Invoking Wittgenstein’s notion of family resemblance, and notions of essentially contested concepts and cluster concepts, Schauer suggests that the fundamental error in the search for the nature of law is the assumption that law is a single concept with essential features. “Maybe both the word ‘law’ and our concept of law consists of a series of intertwined properties, no one of which is necessary for the correct understanding and application of the concept or the word, and no one set of which is sufficient for their correct application and understanding.”23. After listing a series of examples in which recognized forms of law lack one feature or another, Schauer suggests that “the radical diversity of legal experience provides evidence for the non-existence of a satisfactory definition of law, or even an understanding of the nature of law, in terms of essences, or necessary and sufficient conditions.”24.
None of these three articles, individually or in combination, conclusively debunks the assertion that law has a nature, but the criticisms articulated in these pieces have cast substantial doubts on the coherence of this claim. One hopes that theorists who make assertions about the nature of law will rise to the challenge and more fully develop their own position. Until that occurs, talk about the nature of law will sound quaintly mysterious.
- Joseph Raz, Between Authority and Interpretation 91-92 (Oxford, 2009). [↩]
- Scott Shapiro, Legality 9-10 (Harvard, 2011). [↩]
- Julie Dickson, Evaluation and Legal Theory 18 (Hart, 2001). [↩]
- Robert Alexy, On the Concept and the Nature of Law, 21 Ratio Juris 281, 290 (2008). [↩]
- In contrast to others, Joseph Raz has addressed the issue at length in Can There be a Theory of Law? (Oxford, 2005) and in The Blackwell Guide to the Philosophy of Law and Legal Theory 324-342 (Blackwell Publishing, 2005), and On the Nature of Law, 82 Archiv fur Rechts- und Sozialphilosophie 1-25 (1996). [↩]
- Brian Leiter, The Demarcation Problem in Jurisprudence: A New Case for Skepticism, 32 OJLS 1 (2011). [↩]
- Dennis Patterson, Alexy on Necessity in Law and Morals, 25 Ratio Juris 47 (2012). [↩]
- Frederick Schauer, On the Nature of the Nature of Law (2011). [↩]
- Brian Tamanaha, What is General Jurisprudence? A Critique of Universalistic Claims by Philosophical Concepts of Law, 3 Transnational Legal Theory (forthcoming 2012). [↩]
- Brian Bix, Joseph Raz and Conceptual Analysis, (American Philosophical Association Newsletter), Spring 2007, at 1-7; Raz on Necessity, 22 Law and Philosophy 537 (2003). [↩]
- Leiter, supra at 5-6. [↩]
- Id. at 11. [↩]
- Id. [↩]
- Id. at 4. [↩]
- Patterson, supra at 51-52. [↩]
- Alexy, supra at 293. [↩]
- Patterson, supra at 57. [↩]
- Schauer, supra at 2. [↩]
- Raz is an exception. His position is that he is identifying the necessary features of the nature of law based upon our concept of law. See Raz, supra. Because it is grounded in a culturally contingent (“parochial”) concept of law, this appears to be a less strong claim than is made by Dickson and Shapiro. Although Leiter and Schauer mention Raz, they do not specifically address his position. I argue that Raz’s position leads to odd paradoxes; see also Bix, supra. Raz’s view that a culturally based concept of law, which by his own admission is subject to change over time, nonetheless has necessary (and necessarily true) features is controversial and in need of further explanation. [↩]
- Schauer, supra at 3. [↩]
- Id. [↩]
- Id. at 6. [↩]
- Id. at 15. [↩]
- Id. at 17. [↩]