The boundaries of law and the purpose of legal philosophy

Law and Philosophy

Volumn 27, Issue 6, 2008, Pages 643-695

  Priel, Danny ^a  

^a UNIVERSITY OF WARWICK   (United Kingdom)

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EID: 52449132870     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-008-9030-1     Document Type: Review

References (89)

1. Joseph Raz, 'Incorporation by Law', Legal Theory 10 (2004): 1, 15-16.
2. A note on terminology: I will use the terms "jurisprudence," "analytic jurisprudence," "legal philosophy," "analytic legal philosophy" interchangeably throughout this essay.
3. Many of the legal philosophers I call "descriptive" argue that some evaluative considerations are required for such an inquiry, considerations that range from simplicity and comprehensiveness of the theory to evaluative assessment of the most important aspect of the practice. See, e.g., Julie Dickson, Evaluation and Legal Theory (2001) passim; Joseph Raz, 'The Problem about the Nature of Law', in Ethics in the Public Domain: Essays on the Morality of Law and Politics (rev. ed., 1994) 195, 209 (hereinafter Ethics).
4. For references to other legal philosophers expressing the same view see Danny Priel, 'Trouble for Legal Positivism?', Legal Theory 12 (2006): 225, 225-26 n.1. However, even these theorists believe they rely on such evaluative considerations in order to describe what law is, not what it ought to be. See, e.g., Dickson, supra, at 135-136.
5. See, e.g., Jules L. Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory (2001) 15 ("Corrective justice can provide an account of what tort law is, in a way that economic analysis fails to do.").
6. I offer a reinterpretation of these debates, which I believe makes them more interesting in work that is currently in progress.
7. See H.L.A. Hart, The Concept of Law (2nd ed., 1994), pp. 7-8.
8. Ibid. at 14 (quoting J.L. Austin, 'A Plea for Excuses', 57 Proc. Aristotelian Soc. (1956-57) 1, 8) (alteration in original).
9. Hart, supra note 6, at 116.
10. Ibid. at 239-240.
11. Joseph Raz, The Authority of Law: Essays on Law and Morality (1979), pp. 104-105 (hereinafter Raz, Authority);
12. to the same effect Joseph Raz, 'On the Nature of Law', Archiv für Rechts- und Sozialphilosophie 82 (1996): 1, 2 (hereinafter Raz, "Nature");
13. Joseph Raz, 'Can There Be a Theory of Law?', in Martin P. Golding and William A. Edmundson (eds.), The Blackwell Guide to the Philosophy of Law and Legal Theory (2005), 324, 328 (hereinafter Raz, "Theory of Law?").
14. For an earlier statement of a similar idea see H.L.A. Hart, 'Introduction', in John Austin, The Province of Jurisprudence Determined (H.L.A. Hart ed., 1954) vii, xv ("Analytical and historical inquiries provide answers to different questions not different questions to the same questions");
15. cf. Nicola Lacey, 'Analytical Jurisprudence Versus Descriptive Jurisprudence Revisited', Texas Law Review 84 (2006): 945, 953 (arguing that "Hart was relatively impervious to historical and sociological criticism, precisely because he saw his project as philosophical" and as such as distinct from sociological inquiry).
16. Joseph Raz, 'Legal Principles and the Limits of Law', 81 Yale Law Journal 81 (1972): 823, 842.
17. Joseph Raz, 'Two Views of the Nature of the Theory of Law: A Partial Comparison', in Hart's Postscript: Essays on the Postscript to The Concept of Law (Jules Coleman ed., 2001) 1, 35 (hereinafter Hart's Postscript);
18. Joseph Raz, 'Authority, Law, and Morality', in Ethics, supra note 3, at 210, 237 (hereinafter Raz, "Authority"); see also Dickson, supra note 3, at 135-136.
19. See, e.g., Dickson, supra note 3, at 17 (limits legal philosophy to those features of law that are both "necessarily true" and "adequately explain" its nature); Andrei Marmor, Interpretation and Legal Theory (2nd ed., 2005), pp. 27, 43;
20. R.H.S. Tur, 'What is Jurisprudence?', The Philosophical Quarterly 28 (1978): 149, 152, 155;
21. see also Ruth Gavison, 'Comment', in Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart (Ruth Gavison ed., 1987) 21, 25 ("Usually, when people think of a theory of law, they think of an attempt to identify the features which are unique to law and distinguish it from other social phenomena.").
22. For a recent article-length defense of this approach see Andrei Marmor, 'Legal Positivism: Still Descriptive and Morally Neutral', Oxford Journal of Legal Studies 26 (2006): 683 (hereinafter Marmor, "Legal Positivism").
23. I think this view is also implicit in John Gardner's claim that legal positivism is "normatively inert." John Gardner, 'Legal Positivism: 5 1/2 Myths', American Journal of Jurisprudence 46 (2001): 199, 202, 213.
24. I explain why this view is mistaken in Danny Priel, 'Evaluating Descriptive Jurisprudence', American Journal of Jurisprudence 52 (2007): 139.
25. See, e.g., John Gardner, 'The Legality of Law', Ratio Juris 17 (2004): 369, 373; to the same e.ect, Dickson, supra note 3, at 22-23 & n.31 (questioning whether Dworkin is an analytic legal philosopher).
26. See, e.g., Ronald Dworkin, Justice in Robes (2006), pp. 32-34;
27. John Finnis, 'On the Incoherence of Legal Positivism', Notre Dame Law Review 75 (2000): 1597, 1604 ("general descriptions of law will be fruitful only if their basic conceptual structure is ... derived from the understanding of good reasons").
28. See Kenneth Einar Himma, 'Substance and Method in Conceptual Jurisprudence and Legal Theory', Virginia Law Review 88 (2002): 1119, 1219-1221.
29. To the same e.ect see Brian Bix, 'Patrolling the Boundaries: Inclusive Legal Positivism and the Nature of Jurisprudential Debate', Canadian Journal of Law and Jurisprudence 12 (1999): 17, 24, who argues that "there is (or, at least, there need be) no point to [analytical jurisprudence] other than knowledge." Soon afterwards he adds that there may be "pleasure from knowledge, from uncovering certain kinds of insights about a social practice that may not have been clear to us, though that practice has been in front of us all of our lives." Ibid. at 25. See also Marmor, 'Legal Positivism', supra note 12, at 692 ("Philosophy should be interested in truth").
30. I follow common philosophical usage by using normal text to refer to things, small capitals to refer to concepts, and the word in quotes to refer to the word that refers to the object within language. Thus, there are dogs in the world, which humans talk about by using the word "dog"; and when doing talking about dogs people employ the concept DOG.
31. I follow here Ray Jackendoff, 'What is a Concept, That a Person May Grasp It?', in Eric Margolis and Stephen Laurence (eds.), Concepts: Core Readings (1999), pp. 305, 305-306.
32. For the problems with the view that mathematics is descriptive of something see Paul Benacerraf, 'Mathematical Truth', The Journal of Philosophy 70 (1973): 661.
33. Of course it is a contingent fact that when referring to water people use a concept that is answerable to changes as a result of scientific discovery. They could have used a different one. This is not in conflict with externalism about meaning. What philosophers Hilary Putnam and Saul Kripke (among others) have argued, see e.g., Saul A. Kripke, Naming and Necessity (1980);
34. Hilary Putnam, 'The Meaning of 'Meaning", in 2 Hilary Putnam, Mind, Language, and Reality: Philosophical Papers (1975), p. 215, is that the concepts we actually use to refer to natural kinds are those whose meaning (content, intension) is fixed by their extension. But we might have used different concepts to refer to natural kinds. For instance when uttering the word "water" we could have denoted by the word the concept watery stuff, i.e., the stuff that has all the superficial features of water and that on Earth happens to be water (H2O), but on Twin Earth would have referred to XYZ. That we use the concept WATER to refer to water is a contingent fact.
35. See Hans Kelsen, General Theory of Norms (Michael Hartney trans., 1991), pp. 19-21, 46-55. I gloss over certain complications in Kelsen's view.
36. Raz, supra note 1, at 10. This question is close to the exclusive-inclusive debate that will be discussed at greater length at Section III.B, infra.
37. This, I believe, is the best explanation of certain normative theories that try to explicate the concept LAW. Such arguments have been criticized as some kind of wishful thinking, as mistaking the philosopher's job of describing what law is with aspirations as to what law should be. See, e.g., Philip Soper, 'Choosing a Legal Theory on Moral Grounds', Social Philosophy and Policy 4 (1986): 31, and Dickson, supra note 12, at 83-92. But the explanation in the text shows why these arguments are mistaken. What such theorists should be understood to be doing is not a change in the concept LAW but rather a change in the practice LAW, a change that if it were to occur would lead to a change in the concept LAW. There is nothing logically mistaken about such an argument. Elsewhere I offered a different explanation than the one offered here for such normative arguments: I argued that it may be that the concept law is partly indeterminate, and that there might be a place for arguing as to what the law should be within the range of indeterminacy as to what the law is.
38. See Danny Priel, 'Alexy on the Connection between Law and Morality', Australian Journal of Legal Philosophy 29 (2005): 140, 146. Of these two explanations Liam Murphy seems closer to the latter, whereas Frederick Schauer seems closer to the former, although he has not made the two-step argument I make in the text, and which I think would make his position stronger.
39. See Frederick Schauer, 'The Social Construction of the Concept of Law: A Reply to Julie Dickson', Oxford Journal of Legal Studies 25 (2005): 493;
40. Liam Murphy, 'The Political Question of the Concept of Law', in Hart's Postscript, supra note 12, at 371, 381-384.
41. Indeed, this is very close to Dworkin's final say on whether regimes with immoral laws can be said to have a legal system or not. See Ronald Dworkin, Law's Empire (1986), pp. 103-104.
42. Raz, supra note 1, at 15-16.
43. It is, however, worth noting that contemporary philosophy has come under attack both by philosophers and outsiders for employing a mistaken methodology that cannot yield knowledge. For such criticisms see, for example, Steven Weinberg, Dreams of a Final Theory (1992), p. 166 (chapter entitled "Against Philosophy");
44. Jakko Hintikka, 'The Emperor's New Intuitions', The Journal of Philosophy 96 (1999): 127 (criticizing philosophers for relying on intuitions). Best known, perhaps, is physicist Richard Feynman's quip that scientists need philosophy of science as much as birds need ornithology. Within jurisprudential circles Brian Leiter has expressed views similar to Hintikka's and voiced Quine-inspired doubts about the possibility of making any conceptual claims. Thus, though he defends "descriptive jurisprudence," his brand is quite different from the one I criticize here, and so exempt from my criticism.
45. For Leiter's views on this matter, which I cannot examine here, see generally Brian Leiter, 'Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence', American Journal of Jurisprudence 48 (2003): 17. It is worth mentioning here, however, that some commentators have argued that Leiter's views do not leave much space for legal philosophy.
46. See, e.g., Jules L. Coleman, 'Methodology', in Jules Coleman and Scott Shapiro (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law (2002), 311, 350.
47. For more on this see Danny Priel, 'Jurisprudence and Necessity', Canadian Journal of Law and Jurisprudence 20 (2007): 173, 196-197.
48. In this sense the question of law's normativity bears some similarity to the question of explaining consciousness. The "philosophical" question is how consciousness is possible, how physical stuff can bring about mindstuff. In both cases too, we can separate the fact that the phenomenon (arguably) exists from the question of its explanation, a matter on which people may be mistaken.
49. Here I answer a view found in Coleman, supra note 4, at 24, 188-190, 200.
50. This point comes from Bertrand Russell, Introduction to Mathematical Philosophy (1919) 172.
51. I should stress that by saying that (3) is a priori I need not be committed to any strange metaphysics, unusual faculties, or the rejection of naturalism. My account follows (though simplifies) the naturalistic account of a priori knowledge in Philip Kitcher, 'A Priori Knowledge', Philosophical Review 89 (1980): 3;
52. and compare with Daniel C. Dennett, Darwin's Dangerous Idea: Evolution and the Meaning of Life (1995) 48-49 & n.6, who correctly points out that Darwin's theory of natural selection is a priori. And Dennett is as naturalist as they get.
53. Couldn't philosophers' work be recast as (3′) Law is a system of primary and secondary rules etc. that is, an a posteriori empirical finding made be legal philosophers? Some philosophers, including some legal philosophers, have indeed argued that legal philosophy should be understood as a scientific-like a posteriori inquiry. See, e.g., Brian Leiter, 'Naturalism and Naturalized Jurisprudence', in Brian Bix (ed.), Analyzing Law: New Essays in Legal Theory (1998), pp. 79, 93-94. We need not examine them here, because, on no plausible reading of the theories the philosophers I criticize here advance or can be understood as a posteriori or empirical arguments.
54. Alternatively, couldn't legal philosophers argue that something like (4) could be discovered by a priori philosophical reflection? There are some philosophers who argue that we can discover some true, non-tautological facts by a priori reflection. See, e.g., Laurence BonJour, In Defense of Pure Reason: A Rationalist Account of A Priori Justification (1998) passim. But even BonJour talks there about the truth of statements of the kind "nothing can be red and green all over at the same time" or "there are no round squares," see ibid. at 100-104. Even if BonJour's claims are correct, I do not see how we could discover (4) by reflection alone. True, with the aid of some assumptions one can explain how (4) will always turn out true, but without empirical testing this is simply a hypothesis, which could only be validated by empirical examination. See more on this in the text below.
55. This is the approach to jurisprudence espoused in Michael S. Moore, 'Law as a Functional Kind', in Educating Oneself in Public: Critical Essays in Jurisprudence (2000), 294, 310. Moore believes philosophers are (or should be) trying to explain what law is (as opposed to what law is). The problem with his approach is not, strictly speaking, that law is not a natural kind. The problem is that in order to make such a determination he must have an agreed-upon sample that can be "baptized" as law, and whose features we could then find by a posteriori inquiry (which presumably will not be made by philosophers, but that is another matter). But in the case of law there is no such agreed-upon sample that can be baptized in this way (as there is in the case of natural kinds). As a result Moore has to resort to an argument about the necessary function of law. He claims that this is an a posteriori discovery of the sort we are familiar with from natural kinds, see ibid. at 235-236, but his arguments don't take into account the fact that unlike in the case of natural kinds there is no prior agreement that what counts as law should be identified by certain necessary features (whether functional or not).
56. I think Brian Leiter would also like to model legal philosophy after (4a) kind of inquiry. See Brian Leiter, 'Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis', in Hart's Postscript, supra note 12, at 355, 366-370. Yet some of what he says suggests he is closer to (4b). See Leiter, supra note 26, at 48-49.
57. See Coleman, supra note 4, at 109-111. He explicitly says that that his argument for inclusive positivism is interpretive. See ibid. at 109.
58. See, e.g., ibid. at 177-178. For references to other many other legal philosophers expressing such a view see note 3, supra.
59. Leiter, supra note 26, at 27. For references to some of the voluminous literature on this topic see Danny Priel, 'Farewell to the Exclusive-Inclusive Debate', Oxford Journal of Legal Studies 25 (2005): 675, 676 n.2. For an explanation of what this debate is about see ibid. at 677-680, and text accompanying notes 38-39 infra.
60. This interpretation is evident even from the title to one of the best known responses to Dworkin's early challenges to positivism, namely Raz, 'Legal Principles and the Limits of Law', supra note 11. A similar reading (or perhaps, misreading) of Dworkin's challenges can still be found in recent writings: "[The] objectivity issue has been called back to the attention of legal positivists in the context of the inclusive/exclusive positivism debate thanks to Dworkin. Dworkin's framing his question in terms of validity - 'can this moral principle be considered legally valid?'- however, allowed the debate to be focused upon the problem of the boundaries of law...." Sylvie Delacroix, Legal Norms and Normativity: An Essay in Genealogy (2006), p. 204; see also Marmor, 'Legal Positivism', supra note 6, at 704 ("the debate between legal positivism and its opponents is mainly about the conditions of legal validity ....").
61. For arguments supporting inclusive positivism see, for example, Matthew H. Kramer, Where Law and Morality Meet (2004), pp. 17-140; Coleman, supra note 4, at 74-148. For defenses of exclusive positivism see Raz, 'Authority', supra note 12; Scott J. Shapiro, 'On Hart's Way Out', in Hart's Postscript, supra note 12, at 149. It is important to stress that the debate is not on how judges should decide cases. This point is accepted on both sides. See Kramer, supra, at 38 (theorists on both camps agree "that judges within some legal systems invoke moral precepts to resolve... hard cases"); Raz, 'Authority', supra note 12, at 233 (the debate has no "bear[ing] on what judges should do.... The issue addressed is that of the nature and limits of law").
62. See Dworkin, supra note 15, at 238. For the distinction between validity, content, and normativity see Priel, supra note 3, at 232-236. For further elaboration on my view that Dworkin's work is not concerned with validity, and that the most fundamental link between law and morality in his work touches on the question of normativity see Danny Priel, 'Forty Years On' (unpublished manuscript), available at http://ssrn.com/abstract=1086386.
63. See also the discussion accompanying notes 55-58 infra.
64. Indeed, on a few occasions one can find arguments of this kind. See Raz, Authority, supra note 10, at 48-50 (attitudes support exclusive positivism); W.J. Waluchow, Inclusive Legal Positivism (1994) 155-163 (attitudes support inclusive positivism). But if we believe the debate could be resolved in this way, why is this considered a philosophical and not an empirical question. Moreover, if that is the case, why present the question to people and look for their answers, instead of speculating on the matter?
65. See e.g., Raz, supra note 22, at 17 ("None of this proves that the incorporation thesis is false. But it raises serious doubts about it...."); Kramer, supra note 39, at 39, 43 (giving arguments for "favoring" a version of inclusive positivism, and arguing it to be "preferable" to exclusive positivism).
66. Ibid. at 130, 141-142; Kramer, supra note 39, at 40-42. Kramer never explains why the "free-.oatingness" of a norm is relevant to the question at hand. In any case, even on its merits his argument is unsuccessful. See Danny Priel, 'Free-Floating from Reality', Canadian Journal of Law and Jurisprudence 21 (forthcoming 2008), available at http://ssrn.com/abstract=1092139.
67. See Raz, supra note 1, at 15; the same view is taken (without argument) in John Gardner, 'Some Types of Law', in Common Law Theory (Douglas E. Edlin, 2007), 51, 60.
68. See the way I explain this debate as calling for a change in the practice of law, not in the concept of law, in note 23, supra.
69. For proponents of the first view see the papers by Schauer and Murphy cited in note 23, supra. For the opposite view that justifies natural law theory on ethical grounds see, for example, Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism (Bonnie Litschewski Paulson & Stanley L. Paulson trans., 2002) 29-35;
70. Gustav Radbruch, 'Statutory Lawlessness and Supra-Statutory Law', Oxford Journal of Legal Studies 26 (2006): 1, 6-7 (originally published 1946).
71. See Priel, supra note 37.
72. See Shapiro, supra note 39, at 177 (arguing for the "impossibility of inclusive guidance") (emphasis added).
73. See Himma, supra note 16, at 1219-1121. Himma gives other arguments as well. Not all are fully worked out. For example, he writes that "conceptual issues at the foundation of any area of law will require a different kind of creativity and skill than are required by issues in substantive areas of law - and that is more than enough to justify the[ir] study...." Ibid. at 1222. But so do certain forms of torture.
74. Holmes argued that the same is true of ideas: "If you want examples ... see how a hundred years after his death the abstract speculations of Descartes had become practical force controlling the conduct of men. Read the works of the great German jurists, and see how much more the world is governed to-day by Kant than by Bonaparte." O.W. Holmes, 'The Path of the Law', Harvard Law Review 10 (1897): 457, 478.
75. Himma, supra note 16, at 1221.
76. See Joseph Raz, 'About Morality and the Nature of Law', American Journal of Jurisprudence 48 (2003): 1, 3.
77. Raz, 'Theory of Law?', supra note 10, at 324 (arguing that jurisprudence is after those necessary truths about law that also "explain" it); see also Dickson, supra note 3, at 17. This seems to be what Hart thought about his theory. He believed that the union between primary and secondary rules is the "essence" of law was and that it had "great explanatory power." Hart, supra note 6, at 155.
78. (2002) 214 C.L.R. 422.
79. Ibid. at 442-443 (footnotes omitted). Raz, incidentally, seems to agree: "judicial use of jurisprudential ideas may sometimes be in place, but it is analogous to the judicial use of ideas from biology." Raz, 'Two Views of the Nature of the Theory of Law: A Partial Comparison', supra note 12, at 33.
80. I use this qualified phrasing first, because judges are surely required to rely on some considerations (for instance some rules of logic), that are not considered part of the law, and also because at least some legal philosophers, in fact some who maintain the importance of the boundary questions, insist that judges must sometimes rely on non-legal considerations. See Raz, supra note 1, at 3-4.
81. This finding is also relevant to my claim in Part II that the practice does not have an answer to questions of boundary. If discussion of those issues by judges, the foremost legal practitioners and the ones that are likely to be most concerned about the boundaries of law is so scant, this provides some support to my claim that the practice itself does not contain answers to the question of boundaries, that is, that the practice is indeterminate on this question.
82. See H.L.A. Hart, 'Analytical Jurisprudence in the Mid-Twentieth Century: A Reply to Professor Bodenheimer', University of Pennsylvania Law Review 105 (1957): 953, 974; Hart, supra note 10, at xv ("the elucidation of fundamental legal notions [in John Austin's work] is not to be confused with the exposition or the criticism of particular legal systems though it is an indispensable preliminary to both.");
83. John Stuart Mill, 'Austin's Lectures on Jurisprudence', in John M. Robson (ed.), 21 The Collected Works of John Stuart Mill (1984), 53, 55-56 (originally published 1832) (reviewing Austin, supra note 10); cf. Coleman, supra note 26, at 350-351.
84. See Brian Z. Tamanaha, A General Jurisprudence of Law and Society (2001), pp. 116, 173-175 (describing the work of legal pluralists who argued that there is no way to distinguish between law and other forms of social control).
85. Raz, 'Authority', supra note 12, at 237. Ironically this sentence appears in an essay dedicated to defending, among other things, exclusive legal positivism, an issue whose importance for our self-understanding escapes me. See also Dickson, supra note 10, at 64.
86. Compare, however, Allan Janik and Stephen Toulmin, Wittgenstein's Vienna (rev. ed. 1996), pp. 167-201 for the argument that Wittgenstein's seemingly abstract and a-historical philosophy of language cannot be separated from the environment of fin-de-siècle Vienna in which he grew up.
87. Most famously in H.L.A. Hart, 'Positivism and the Separation of Law and Morals', Harvard Law Review 71 (1958): 593, 615-618,
88. and Lon L. Fuller, 'Positivism and Fidelity to Law-A Reply to Professor Hart', Harvard Law Review 71 (1958): 630, 648-660.
89. See Hart, supra note 6, at 120-123.