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- Herausgeber: John Wiley & Sons
- Kategorie: Geisteswissenschaft
- Sprache: Englisch
This book is devoted to the theory of legal theory, also referred to as the "meta-theory of law".
The aim of this emerging discipline is to determine the objectives, aims and methods of legal theory, and to establish the conditions of possibility as well as the validity criteria for theoretical discourse on law. The contributions in this book provide an overview of these aspects through different perspectives and approaches.
The very purpose of legal theory has been disputed and the subject area is currently subject to increasing cross-fertilization between different, and sometimes diverging, traditions. Meta-theory of Law assesses these emerging trends by questioning two basic objects of legal theory, the "nature" and the "science" of law.
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Veröffentlichungsjahr: 2022
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Table of Contents
Cover
Title Page
Copyright Page
Introduction
Part 1: Legal Theory Methods
1 Methodology in Legal Philosophy
1.1. Introduction: methodology in legal philosophy
1.2. The nature of law?
1.3. Changing questions: diversity and development
1.4. Directly evaluative legal philosophy versus indirectly evaluative legal philosophy
1.5. Conclusion
2 The Methodology of Analytic Jurisprudence
2.1. Foreword
2.2. The principles of an analytic approach to jurisprudence
2.3. The statute of analytic jurisprudence
2.4. Two sets of analytic tools
2.5. Vindicating a modest and reconstructive variety of conceptual analysis
2.6. Vindicating the analytic approach (and the principle of simplicity) against “essentialist” jurisprudence
2.7. References
3 Methodology for Theorizing About the Nature of Law and About Doctrinal Areas of Law
3.1. Introduction
3.2. Theories of the nature of law
3.3. Theories of doctrinal areas
3.4. Conclusion
3.5. References
4 Empirical Complexity as a Conceptual Claim
4.1. Introduction
4.2. Hart’s Austinian account of the quotidian empirical statement
4.3. Rejecting the descriptive fallacy
4.4. The empirical relevance of the conceptual scheme in
The Concept of Law
4.5. Conclusion
4.6. References
5 Authoritative Disagreement
5.1. Introduction
5.2. Explananda
5.3. Meta-theoretic demarcation
5.4. Semantic explanations
5.5. Conclusion
5.6. References
6 Jeremy Waldron, the Legitimacy of Judicial Review and
Political
Political Theory
6.1. Introduction
6.2. The first Waldron
6.3. Reviews of the first Waldron
6.4. The second Waldron
6.5. Conclusion
6.6. References
Part 2: Legal Science Theories
7 Metatheory of an (Empirical) Legal Science
7.1. General framework: theory, metatheory and metascience
7.2. (Meta)theoretical theses of an (empirical) legal science
8 Legal and Social Sciences: What are the Links?
8.1. Social sciences, a factor in redefining legal sciences
8.2. The modalities of disciplinary articulations
8.3. References
9 A Hermeneutic Reading of Law and Legal Theory: Regarding Paul Ricœur
9.1. The outcome of a long journey, from the interpretive method to a general epistemology
9.2. Hermeneutic and textual disciplines
9.3. Law as a hermeneutical discipline
10 Legal Science According to the Pure Theory of Law
10.1. The negation of legal science (Sander)
10.2. The defense of legal science (Merkl)
10.3. Legal science pushed into the background (Kelsen)
11 Axiological Neutrality, Oppositional Thinking and Knowledge
11.1. The three aspects of a theory
11.2. “Hume’s Guillotine”, a false foundation for axiological neutrality
1
11.3. Oppositional commitment to the theory
2
11.4. A new disciplinary ethics, but for which academic field?
11.5. References
12 Legal Science and Its Roles in Legal Reasoning
12.1. The concept of a
source of law
12.2. Arguments from authority
12.3. Types of scholarly authority
12.4. Implications for jurisprudence
12.5. Conclusion
12.6. References
13 Inference to the Best Explanation in Legal Science; on Balancing Contrastive Hypotheses
13.1. Normative propositions in legal science
13.2. Inference to the best explanation
13.3. Speculative (hypothetical) normative propositions and inference to the best explanation
13.4. Contrastive hypotheses in balancing
13.5. References
List of Authors
Index
End User License Agreement
List of Tables
Chapter 11
Table 11.1. Pascal’s wager: a decision table
List of Illustrations
Chapter 11
Figure 11.1. Theory of knowledge: how a research paradigm works. For a color...
Guide
Cover Page
Title Page
Copyright Page
Introduction
Table of Contents
Begin Reading
List of Authors
Index
Wiley End User License Agreement
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SCIENCES
Sociology, Ethics and Epistemology of Sciences,Field Directors – Bernard Reber and Jim Dratwa
Epistemology of Normative Sciences,Subject Heads – Mathieu Carpentier, Emmanuel Picavet and Bernard Reber
Meta-theory of Law
Coordinated by
Mathieu Carpentier
First published 2022 in Great Britain and the United States by ISTE Ltd and John Wiley & Sons, Inc.
Apart from any fair dealing for the purposes of research or private study, or criticism or review, as permitted under the Copyright, Designs and Patents Act 1988, this publication may only be reproduced, stored or transmitted, in any form or by any means, with the prior permission in writing of the publishers, or in the case of reprographic reproduction in accordance with the terms and licenses issued by the CLA. Enquiries concerning reproduction outside these terms should be sent to the publishers at the undermentioned address:
ISTE Ltd27-37 St George’s RoadLondon SW19 4EUUK
John Wiley & Sons, Inc.111 River StreetHoboken, NJ 07030USA
www.iste.co.uk
www.wiley.com
© ISTE Ltd 2022The rights of Mathieu Carpentier to be identified as the author of this work have been asserted by him in accordance with the Copyright, Designs and Patents Act 1988.
Any opinions, findings, and conclusions or recommendations expressed in this material are those of the author(s), contributor(s) or editor(s) and do not necessarily reflect the views of ISTE Group.
Library of Congress Control Number: 2022934061
British Library Cataloguing-in-Publication DataA CIP record for this book is available from the British LibraryISBN 978-1-78945-074-3
ERC code:
SH2 Institutions, Values, Environment and Space SH2_4 Constitutions, human rights, comparative law, humanitarian law, anti-discrimination law
SH4 The Human Mind and Its Complexity SH4_13 Philosophy of science, epistemology, logic
SH5 Cultures and Cultural Production SH5_9 Metaphysics, philosophical anthropology; aesthetics SH5_10 Ethics; social and political philosophy
Introduction
Mathieu CARPENTIER
Institut Maurice Hauriou (IMH), University of Toulouse, France
This book is devoted to the theory of legal theory, which may also be referred to using the barbaric term “metatheory of law”. The aim of this emerging discipline is to determine the objective, aims and methods of legal theory (however it might be referred to: philosophy of law, jurisprudence, Rechtstheorie, Rechtsphilosophie and so on). The aim of the metatheory of law is to establish the conditions of possibility, and the criteria of validity, of theoretical discourses on law. The contributions gathered in this book aim to take stock of the object, methods and aims of legal theory, from a variety of very different perspectives and approaches.
Indeed, the different traditions of legal theory have sometimes seemed to maintain a “dialogue of the deaf” on these issues. On the Continent, that is to say, the countries with a continental (or civil law) legal system, the object of legal theory has seemed to primarily be that of legal science1, following an essentially epistemological perspective: the aim was to establish the conditions for a science of law that was both authentically scientific and authentically legal (or juristic). This trend culminated in the work of the Vienna School or, in a decidedly different way, the Scandinavian Realists, including Alf Ross2. In the tradition of English-speaking countries, the concerns were different, even if they may have been present in the work of someone like Bentham. Hart’s successors have mostly been interested not in the science, but in the nature of law, the salient, important, even essential properties of which they try to determine.
Today, this “tale of two traditions” has clearly lost both its force and its explanatory power. Legal theory is subject to increasingly varied approaches and to ever greater cross-fertilization between different traditions. A series of works has emerged attempting to capture these methodological developments3 and to establish the role and methods of legal theory4. The purpose of this book is to follow this trend and to propose elements of a “theory of the theory” of law by questioning the two primary objects of legal theory (the “nature” versus the “science” of law), which are often likely to conflict.
Part 1 of this book draws on contributions that question the methods of legal theory. In this field, methodological questioning is not new5 and on several occasions there has been talk of a “methodological turn” in the philosophy of law6. The end of the 20th century saw legal theorists engaged in argument – or, rather, several arguments – concerning the descriptive character of legal theory as practiced by Hart and many of his disciples. Dworkin’s positions7 in his debate with Hart8, as well as the very different theses of John Finnis9 and Stephen Perry10, have cast doubts on the viability of undertaking a descriptive philosophy of law, free from any normative or evaluative element. The contributions of Julie Dickson, Brian Bix, Andrej Kristan and Giulia Pravato each return to some aspects of these controversies.
More recently, legal theory has undergone a new methodological turn. Legal theorists, foremost among them being Joseph Raz11, often assign12 the task of determining the “nature” of law to their discipline. This undertaking can typically be understood in two ways: in a weak sense, the expression “the nature of X” generally and vaguely means “what X consists of/in”; in a strong sense, however, it is, in many respects, synonymous with “the essence of X”. The nature of law is, in this hypothesis, no less than the set of essential properties that make the law what it is and without which the phenomenon studied would not be law. However, whenever lega philosophy sets out to elucidate the nature of law in the strong sense, that is to say, to determine the essential properties of law, it exposes itself to accusations of essentialism, led by authors as diverse as Frederick Schauer13, Pierluigi Chiassoni14 and Dennis Patterson15. Several contributions to this book attempt either to defend a cautious version of this essentialism (contributions by Julie Dickson and Brian Bix, in particular), or go beyond it by modifying its tools, which involves a reconfiguration of conceptual analysis as the preferred method of legal theory (contribution by Pierluigi Chiassoni), or a defense of an complexity-oriented empiricism (contribution by Gregory Bligh).
Finally, several contributions explore certain avenues that are still in their infancy. Thus, Brian Bix intends to set out a roadmap for what might be called the “special” theory of law, or the theory of branches of law (such as the theories of constitutional and criminal law). This field (or, rather, fields) of legal theory is booming and is accompanied by an intense metatheoretical and methodological reflection on the topic16. Finally, Charles-Maxime Panaccio considers the relationship between legal and political theory, following the work of Jeremy Waldron. The aim is to show how a renewed conception of political theory can enable us to take a fresh look at certain classic problems of legal theory (and in particular constitutional theory), such as the role and legitimacy of constitutional adjudication.
Part 2 of this book reflects upon the role of legal theory as a theory of legal science17. The question of the scientificity of legal knowledge has been regularly debated. The study of law has been given many names: doctrine, Rechtsdogmatik, jurisprudentia, legal scholarship and so on, but the exact nature of this activity, which today is the (occasionally contested) prerogative of academic lawyers, remains indeterminate and therefore controversial. The study of law should be described as an authentic science, if not in the sense of one of the “hard” sciences, then at least as one of the human sciences – though this is not self-evident. First, such a qualification seems to run contrary to the accepted image according to which the lawyer mobilizes an art (or even know-how) rather than a science (ars aequi et boni, according to the formula known to all first-year students); second, it seems to introduce a distance between the object and the science used to study it, as if this object could lend itself to scientific treatment and as if the science in question were not to some extent the producer of the object itself – the study of law sometimes being difficult to distinguish from the very production of law18; finally, it assumes that the study of law can correspond to criteria of scientificity and that it is in some way suitable for scientific interpretation.
The contributions in Part 2 of this book attempt to trace the metatheoretical assumptions that accompany the very idea of legal science. Indeed, it is important to question the way in which legal theorists conceive science, on the one hand, and law and the study of law, on the other hand, so that it may or may not make sense to speak of a science of law and to set out its guidelines in terms of epistemological norms (definition of the truth of propositions, coherence of theoretical statements, objectivity in the handling of data, research devices, axiological neutrality and so on). Thus, Eric Millard demonstrates that an empirical theory of legal science, of the type he supports following on from Alf Ross’ work, is, in fact, based on metatheoretical assumptions that imply a choice between several scientific theories from science itself. For his part, Jean-Baptiste Pointel returns critically to what has been the keystone of many theories of scientificity since Weber (if not before), namely axiological neutrality, the political and ethical stakes of which he shows as sometimes unsuspected. Did not Kelsen himself recognize that the choice of a theory of law and a scientific reconstruction of a particular branch of law could be a political choice19?
The theory of legal science is undoubtedly also based on a metatheory of law – and not simply a metatheory of science. Thomas Hochmann thus shows, on the basis of an analysis of the internal dissensions from the Vienna School, the extent to which the theorist’s conception of law – as being capable of understanding defective norms, in other words, in a sense, capable of being qualified as contrary to a higher norm – determines the conception he has of the very possibility of a science of law.
Second, it is possible to question the boundaries of legal science: Véronique Champeil-Desplats notably questions the relationship between social sciences and legal science; Xavier Bioy and Thomas Escaich Dubourg defend the usefulness of recourse to Ricoeur’s hermeneutic philosophy for legal science, within which interpretation plays a key role.
Finally, the last two contributions in this book consider the relationship between legal science theory and legal reasoning theory in different ways. David Duarte highlights the role of inference to the best explanation (a mode of reasoning sometimes called abduction) within legal science, while theories of scientific reasoning frequently emphasize its importance in scientific discovery. Fabio Shecaira shows the role of legal science within legal reasoning, including the way in which judges use arguments from legal doctrine, which requires a fresh look at the theory of the sources of law.
The contributions gathered in this book contribute to an ever-increasing reflection in contemporary literature on the theory and methods of legal theory and/or legal science. In doing so, they do not claim to be encyclopedic, nor to offer purely tertiary literature on these issues. This would, moreover, have been impossible, given that these questions, which have occupied theorists for half a century, have given rise to a mass of writings, theses and theoretical positions. While, for the most part, the contributions in this book give an overview of the state of the art within which they take place, they each bear the mark of their authors’ specific perspective and approach. More than a sum, it is a kaleidoscope, reflecting the diversity of questions that arise in the metatheory of law. We hope that this book will help to provide some answers to the fundamental metatheoretical question: “What is the point of legal theory?”
Notes
1
See, in particular, Shecaira, F. (2015). Legal scholarship and the subject matter of jurisprudence.
Archiv für Rechts- und Sozialphilosophie
, 101, 411–427.
2
See, in particular, Ross, A. and Holtermann, J.v.H. (eds) (2019).
On Law and Justice
, Uta Bindreiter (trans.). Oxford University Press, Oxford.
3
See, in particular, Pavlakos, G. and Coyle, S. (eds) (2005).
Jurisprudence or Legal Science?
Hart Publishing, Oxford.
4
See, for example, Dickson, J. (2001).
Evaluation and Legal Theory
. Hart Publishing, Oxford; Leiter, B. (2003). Beyond the Hart/Dworkin debate: The methodology problem in jurisprudence.
American Journal of Jurisprudence
, 48, 17–51; Kramer, M. (2012). What is legal philosophy?,
Metaphilosophy
, 43; Banas, P., Dyrda, A., Gizbert-Studnicki, T. (2016).
Metaphilosophy of Law.
Hart Publishing, Oxford; Leiter, B. and Langlinais, A. (2016). The methodology of legal philosophy. In
The Oxford Handbook of Philosophical Methodology
, Cappelen, H., Gendler, T., Hawthorne, J. (eds). Oxford University Press, Oxford; Lamond, G. (2016). Methodology. In
The Cambridge Companion to the Philosophy of Law
, Tasioulas, J. (ed.). Cambridge University Press, Cambridge.
5
We would like to refer to our study devoted to this subject, some passages of which are reproduced here: Carpentier, M. (2018). Controverses sur la “nature” du droit.
Droit & Philosophie
, 9.
6
See, in particular, Green, L. (2005). General jurisprudence. A 25th anniversary essay.
Oxford Journal of Legal Studies
, 25, 565–580. In general, we refer French-speaking readers to the following excellent study: Chérot, J-Y. (2013). Le tournant méthodologique en philosophie du droit. In
Le droit entre autonomie et ouverture. Mélanges en l’honneur de Jean-Louis Bergel
, Chérot, J.-Y., Cimamonti, S., Tranchant, L., Trémeau, J. (eds). Bruylant, Brussels.
7
Dworkin, R. (1986).
Law’s Empire.
Harvard University Press, Cambridge, MA.
8
Hart responded to Dworkin twice: at a symposium in Jerusalem in 1984 (Hart, H.L.A. (1987). Comment. In
Issues in Contemporary Legal Philosophy
, Gavison, R. (ed.). Clarendon Press, Oxford) and in the postscript to
The Concept of Law
(Hart, H.L.A. (2012).
The Concept of Law
, 3rd edition. Oxford University Press, Oxford).
9
Finnis, J. (2011).
Natural Law and Natural Rights
, 2nd edition. Oxford University Press, Oxford.
10
Perry, S.R. (2001). Hart’s methodological positivism. In
Hart’s Postcript
, Coleman, J.L. (ed.). Oxford University Press, Oxford.
11
Raz, J. (ed.) (1994). The problem about the nature of law. In
Ethics in the Public Domain
. Oxford University Press, Oxford; Raz, J. (ed.) (2009). Can there be a theory of law? In
Between Authority and Interpretation
. Oxford University Press, Oxford; Raz, J. (ed.) (2009). Two views of the nature of the theory of law: A partial comparison. In
Between Authority and Interpretation
. Oxford University Press, Oxford; Raz, J. (ed.) (2009). On the nature of law. In
Between Authority and Interpretation
. Oxford University Press, Oxford.
12
See, in particular, Dickson, J. (2001).
Evaluation and Legal Theory.
Hart Publishing, Oxford, p. 19; Shapiro, S. (2001).
Legality
. Harvard University Press, Cambridge, MA; Gardner, J. (2012).
Law as a Leap of Faith.
Oxford University Press, Oxford.
13
Schauer, V.F. (2012). On the nature of the nature of law.
Archiv für Rechts- und Sozialphilosophie
, 98, 457–467; Schauer, F. (2013). Necessity, importance, and the nature of law. In
Neutrality and Theory of Law
, Ferrer Beltrán, J., Moreso, J.J., Papayannis, D.M. (eds). Springer, Dordrecht; Schauer, F. (2015).
The Force of Law.
Harvard University Press, Cambridge.
14
Chiassoni, P. (2011). The simple and sweet virtues of analysis. A plea for Hart’s metaphilosophy of law.
Problema
, 5, 53–80.
15
See, in particular, Patterson, D. (2016). Can we please stop doing this? By the way, Postema was right. In
Metaphilosophy of Law
, Banas, P., Dyrda, A., Gizbert-Studnicki, T. (eds). Hart Pubishing, Oxford.
16
See, in particular, Moore, M. (2000). Theories of areas of law.
San Diego Law Review
, 37; Khaitan, T. and Steel, S. (2020) Theorising areas of law. Unpublished manuscript.
17
For a renewed approach to the issue, reference is made to the following important thesis: Ho Dinh, A.-M. (2018).
Les Frontières de la science du droit
. LGDJ, Paris.
18
See, in particular, Peczenik, A. (2005).
Scientia Juris: Legal Doctrine as Knowledge of Law and as Source of Law
. Springer, Dordrecht.
19
On the subject of the choice between the two variants of the monistic theory in international law, Kelsen writes: “Which of the two theses deserves preference? This is a question without a properly legal answer [...]. One can only decide in consideration of metalegal elements – ethical and political ideas.” (Kelsen, H. (1925). Les Rapports de Système entre le droit interne et le droit international public.
Recueil des cours de l’Académie de droit international de La Haye
, 14, 313).
Part 1Legal Theory Methods
1Methodology in Legal Philosophy
Julie DICKSON
Somerville College, Oxford, and
Faculty of Law, University of Oxford, UK
In their bluntest form, the doubts concern whether there is any more
need for a philosophy of law than for a philosophy of bus-driving.
Lawyers convey houses, and bus drivers convey people.
Both will do so regardless of any philosophical fuss … .
Neil MacCormick1
1.1. Introduction: methodology in legal philosophy
It was with a characteristic combination of insight and good humor that Neil MacCormick once raised the doubts mentioned in the quotation above. In a certain – somewhat radical – sense, the doubts are methodological in character: they concern whether there is any point in engaging in legal philosophy at all. Like MacCormick, I believe that these doubts can be disarmed, and, ultimately, put to rest2. Moreover, I contend, the path to doing so, although not straightforward, can be both illuminating and enriching. It can be illuminating in the sense that a satisfactory response to the “What’s the point of legal philosophy?” challenge can shed important explanatory light not just on the issue of why engage in legal philosophy at all but also on how to engage in it, with what aims and aspirations in mind, and subject to which constraints. And this in turn can be enriching in that discussing these issues reveals that the terrain of the proper methodology in legal philosophy is vast, varied and consists of a never-ending well-spring of diverse and developing questions, challenges and areas to explore, all of which fall within the purview of legal philosophical inquiry.
We can start to map some of this terrain by considering exactly what might be meant in discussing “the methodology of legal philosophy”. In my view, an expansive approach is the correct course here. By “the methodology of legal philosophy”, then, I mean engaging with any of the following questions, and with the further issues which such engagement might open up3. What are the aims of legal philosophy? What can it hope to achieve? As per MacCormick’s doubts, what is the point of philosophizing about an intensely practical discipline, the practice of which will continue regardless of such philosophizing? How should legal philosophers approach and engage with their subject matter, and what constraints are incumbent on them as they do so? Which questions does and should the philosophy of law seek to address? What are its relations with neighboring disciplines, such as political, moral and social philosophy, and are there important sub-divisions of inquiry within the domain of legal philosophy itself? What is the “evidence base” of legal philosophy? In virtue of what, if anything, might jurisprudential claims be true or false? What are the criteria of success of legal philosophy, and how do we know if they have been met? To what extent are different jurisprudential explanations of the same phenomena compatible? Can there be progress in legal philosophy? Does the discipline have a finite or a never-ending task?
As this array of questions should make clear, on this expansive understanding of it, the methodology of legal philosophy stretches significantly beyond inquiries concerning how or the way in which legal philosophy ought to be done. Crucially, it includes and encompasses inquiry into what legal philosophy is: its aims, criteria of success, evidence base, constraints and prospects for progress, and indeed how we should determine its domain and subject matter. These are deep-rooted and philosophically rich questions. The present discussion cannot address them all and can explore only certain facets of those issues upon which it does focus. However, as these will emerge from the account of legal philosophy which I develop and defend, this selectivity is an inevitable, but also a valuable, feature of jurisprudential inquiry4.
In the course of what follows, I examine three main issues with regard to correct jurisprudential methodology: (i) Does it make sense for legal philosophy to search for and attempt to identify and explain the nature of law? (ii) Are the questions of legal philosophy fixed and unchanging or do they develop and alter over time? (and the implications of the answer to this for (i)); (iii) What roles do evaluative judgments play in legal philosophy, and at what junctures should evaluative judgments of various kinds come into play in constructing theories of law?
These issues are examined in sections 1.2–1.4. In conclusion, I hope to have established that one possible and worthwhile task of legal philosophy is to attempt to accurately identify and adequately explain aspects of the nature of law, and that this endeavor involves legal philosophers asking and attempting to answer a never-ending, and constantly evolving, diverse series of questions. Moreover, I hope to have explained and explored my view that the approach to legal philosophy which I have written about in previous work, and which I refer to here as “indirectly evaluative legal philosophy” (IELP), embodies the correct approach with regard to the role, place and type of evaluative judgments necessary for theories of law to be successful.
1.2. The nature of law?
On considering the methodological questions, “What are the aims of legal philosophy?” and “What can it hope to achieve?”, a significant number of legal philosophers take the view that one important strand in legal philosophy aims to identify and explain the nature of law5. Moreover, and interestingly, this methodological aim of seeking law’s nature is shared by legal philosophers who end up taking very different views on what that nature is:
Familiar legal theories, both those that make reference to moral facts and those that don’t, are such hypotheses. They aim to provide insight into the nature of law by showing how the factors in terms of which they purport to explain law, in the particular order that the theory places them, work to make the law what it is6.
Essential or necessary properties of law are those properties without which law would not be law. They must be there, quite apart from space and time, wherever and whenever law exists. Thus, necessary or essential properties are at the same time universal characteristics of law. Legal philosophy qua enquiry into the nature of law is, therefore, an enterprise universalistic in nature7.
[…] I will try to say something about the nature of law, that is I will be advancing views which belong to the general theory of law. […] The general theory of law is universal for it consists of claims about the nature of all law, and of all legal systems […] wherever they may be, and whatever they might be8.
[the question “What is law?”] […] reflects a philosophical effort to understand the nature of law in general […]9.
[…] as I intend the hypothesis, it purports to identify an essential property of law. It purports not merely to say something true or even necessarily true about law, but to say something about law’s nature10.
There are several important points to note in understanding the character, and the hoped-for explanatory pay-off, of such stances on the aims of legal philosophy.
First of all, as these quotations reveal, an account of the nature of law aims to be general in character, and, if it can be found, will reveal those properties that law possesses wherever, and whenever, it does, and has, existed.
Second, an account of the nature of law aims to identify and explain those properties law must possess in order to be law, that is, those properties that make law into what it is.
Third, certain features of an explanation of the nature of law can light the way to an understanding of what is at stake here, and of what motivates some legal philosophers to adopt this aim. Explaining the nature of law holds special importance in understanding law, because such an explanation, if attainable, would have distinctive and significant explanatory power. It would enable us to understand what is true of law in general, and not merely in the locally and temporally bound form in which we encounter it in our own society. It would enable us to understand which properties are constitutive of law, and which make it into what it is. And it would enable us to separate out what is necessarily the case about law, that is, that which must obtain for law to exist, from that which is sometimes the case about law, but which is dependent on some prevailing contingencies of the political, economic, cultural and social conditions in which it develops.
Fourth, it is vitally important to note that, in claiming above that explanations of the nature of law – if attainable – would hold a special place in our understanding of law, I am not claiming – and neither are many of those seeking such explanations – that other types of inquiry concerning law are less important, less interesting or less worthy of scholarly study than are inquiries into law’s nature. In my view, philosophy of law is a “broad church” and we should allow all illuminating approaches to bloom11. Theories of the nature of law represent one important kind of jurisprudential inquiry, but it is one of its type among many. For example, there is also much important and insightful work in legal philosophy which examines various important but contingent features of law12, particular areas of law13 and jurisdiction-specific features of law14. Moreover, some legal philosophers have drawn attention to the possible links between, and mutual complementarities regarding, accounts of certain contingent features of law, and accounts of the nature of law15. All that is claimed in making the third point above is that an account of the nature of law possesses a distinctive explanatory power, for the reasons which have been noted.
Fifth – as will be explained in section 1.3 – seeking to identify and explain the nature of law does not commit legal philosophers to theorizing at any given time about all those properties which constitute its nature. Rather, legal theorists adopting this methodological approach focus on a subset of those plausibly very numerous properties which make law into what it is, guided by the puzzles and questions which are of interest to them and to their audience.
The points above illuminate further what is, and what is not, involved in seeking to identify and explain law’s nature. Of course, it remains the case that it is one thing to have certain methodological aims in legal philosophy, and quite another to make good on those aims, and to succeed in the self-appointed task. The views quoted and aims discussed above may strike some readers as both ontologically and epistemologically extravagant, or even grandiose, and as giving legal philosophy an impossible task: to develop an account of the nature of law, wherever and whenever it is found, when in fact, law, being a human-made social construct, simply has no such nature, and rather exhibits a variety of different features, dependent on the time, place and culture in which it develops. An objector finding such thoughts plausible could seek not so much to explain, but to explain away the apparent commitments in the quotations with which this section opened, perhaps on an “error theory” type basis: these legal philosophers clearly believe that their theories contain propositions that are about the nature of law, that is, about those properties that law must possess in order to be law, and they clearly purport to assert truths about those properties in their theories but, in fact, there are no such properties because the kind of thing that law is renders it incapable of possessing such properties16.
Perhaps unsurprisingly, objectors holding views along the lines outlined above are indeed to be found in contemporary legal philosophy. To mention but a few, Brian Tamanaha, Frederick Schauer, Brian Leiter and Kevin Walton have all – at certain points in their work at any rate – expressed doubts with regard to the viability and/or usefulness of legal philosophy seeking to identify and explain the nature of law17. Each of these theorists holds subtly different views, and approaches the relevant issues from the direction of their own distinctive interests. There is, however, a common underlying theme that their views highlight: the concern that a human-made, socially constituted and arguably artifactual18 phenomenon such as law can have a nature, and that there can be a correct account of those properties which such a phenomenon necessarily possesses, and which make it into what it is.
The challenges that such views raise are important, philosophically complex and worthy of extended consideration. The constraints of time and space of the current discussion mean that this cannot fully be attempted here19. What I will try to do in the remainder of this section, however, is to indicate what, in my view, needs to be established for inquiries into aspects of law’s nature to be possible and viable.
The key here lies in appreciating that what is needed is a context-sensitive and domain-apt understanding of what it would be for law to have a nature. According to my own view of law’s character20, law is indeed a human-made, socially constituted phenomenon, and law comes into being and is modified, revised and applied in virtue of human beings, and the social institutions they create – such as legislatures, courts and legal officials – decreeing, deciding, recognizing, practicing, enforcing or interacting in some way with a given set of norms. Given that law is a phenomenon of this kind, when we come to consider what it would be for it to have a nature, we need an account that is apt for the domain to which law belongs: the domain of human-made socially constituted phenomena which, once constituted, has a social reality. In particular, in my view, we need a domain-apt understanding of what it would be for theories of the nature of law to be about an appropriately understood reality, and a metaphysically modest understanding of what theorists need be committed to in attempting to construct theories about aspects of that reality21.
The claim that in order for law to have a nature which theories of law are capable of ascertaining those theories must be about an appropriately understood reality, leaves open for discussion the character or, we might say, the ontology, of the reality in question. Clearly, the ontology of that aspect of reality featuring law will be very different from the ontology of that aspect of reality featuring phenomena in the natural world, such as the compositional and orbital properties of the planets of the solar system. We will be talking, in the case of law, about some sort of “social reality”: about the processes, practices, institutions, attitudes, intentions, conduct, etc. of human beings that bring legal systems, and the laws comprising them, into existence, and who maintain such systems in existence, and in virtue of which their legal norms are developed, modified and adjudicated upon. The matters to be explored, then, are whether it is plausible that, and what exactly needs to be the case such that, law has a nature in the sense which is relevant to, and apt for, that domain of reality it properly belongs to. To put the matter another way, we should not assume that the standard to be met with regard to whether law has a nature is the same standard as is apt in the case of the reality of entities in the natural world, and we should not assume that because law does not have a nature in the same sense that, for example, the planet Jupiter’s atmosphere has a nature, law does not have a nature, period, and is not truly part of reality, appropriately understood.
Why should we not make such assumptions? For one thing, it seems odd and inappropriate to assume a “one size fits all” approach to what is required for phenomena to be part of reality when the phenomena in question is as varied as, to pick but a few examples: law, quarks, German shepherd dogs, mobile phones, the University of Oxford, cellular RNA, chess, French new wave cinema, chrysanthemums, solid lipid nanoparticles and helium. Additionally, it would seem peculiar if not indeed perverse to decide at the outset of our methodological investigation to hold our explanandum – law – to a standard which, given the sort of thing that it is, will be impossible for it, even in principle, to meet. Legal philosophers may indeed have persuasive arguments supporting their challenges to the idea of law having a nature, but the route to establish these surely cannot run via defining at the outset what would have to be the case for law to have nature in terms of criteria, which it is constitutionally incapable of satisfying.
In addition to adopting a domain-apt understanding of law being part of social reality, it is also important that we adopt what can be referred to as a “metaphysically modest” interpretation of the claims about that reality, which theories of the nature of law make. What I mean by this can be illustrated by way of contrasting such a metaphysically modest approach with the way in which those who have doubts regarding legal philosophy about the nature tend to characterize the claims of such theories.
Tamanaha, for example, contends that legal philosophy about the nature of law seeks truths about law which hold good not merely in all human societies, but in “all possible legal systems on all possible worlds, real and imaginary, at all possible times”22. Schauer regards many contemporary legal philosophers working on problems about the nature of law as working “within the domain of essentialism and the domain of what is necessarily true of all possible legal systems in all possible worlds” 23. And Walton criticizes much contemporary legal philosophy about the nature of law for “engaging in an a priori search for law’s essence”24.
These theorists share a tendency to interpret the aims, and claims, of those engaging in legal philosophy about the nature of law in what we might call a “metaphysically heavy-duty” or “metaphysically extravagant” way. Doing so immediately raises, and is intended to raise, intuitive doubts that law, and legal philosophy about the nature of law, can possibly make good on those aims and claims. Accusing legal philosophy about the nature of law as always seeking a priori truths immediately raises the question of whether it makes any sense to think that we can know things about an intensely practical, concrete, social practice such as law without reference to experience of how law actually operates, in society, and upon our practical reasoning. Claiming that legal philosophers interested in the nature of law always seek universal truths of a kind that hold not merely in human contexts, but that are necessarily true in all possible worlds, immediately raises doubts that such philosophers have grasped the sense in which law, as picked out by and understood via our concept of law, is deeply rooted in the aims, needs, functions and limitations of governance practices in human society.
It is a mistake, however, to interpret the aims and claims of legal philosophy about the nature of law in the metaphysically heavy-duty way that Tamanaha, Schauer and Walton do, or to assume that this is the only way to interpret them. On the contrary, we can and should adopt a metaphysically modest interpretation of these matters and, moreover, many legal philosophers interested in aspects of law’s nature, already do just that.
Michael Giudice, for example, disputes head on the idea that legal philosophy about the nature of law is in the business of searching for either analytic, or a priori, truths, and devotes a chapter of his recent book to developing and defending the alternative view that:
[…] to the extent that many of the most interesting necessity claims in jurisprudence are defensible, they are best understood and characterized […] as a form of a posteriori necessary truth25.
Joseph Raz, in responding to criticisms that his view of law having a nature falls foul of a problematic kind of essentialism, which is out of place in the case of a human-made social institution, explains that:
It seems to me that Bulygin is mistaken in attributing to me a belief in essentialism. There are various things philosophers mean by essentialism. The common one is associated with the thought that some common nouns are rigid designators, that is that the meaning of those common nouns is determined by the way reality is divided […] It has been popular to think that natural kind terms are of this kind […] No one believes that all words are natural kind words, and very few people – perhaps only Michael Moore – believe that ‘the law’ is a rigid designator. My discussion of the way the concept of law changes shows that I hold beliefs inconsistent with such a view26.
Moreover, Leslie Green, in engaging with Schauer’s recent work on methodology, notes that H.L.A. Hart took a distinctively human, and non-metaphysically extravagant approach to the idea of necessity at some points in his work, an approach which Green also welcomes and embraces:
[…] it is Hart who insists that “a place must be reserved, besides definitions and ordinary statements of fact, for a third category of statements: those the truth of which is contingent on human beings and the world they live in retaining the salient characteristics which they have”
[…] in the human sciences, as soon as we start down the dark path of things that hold true in “all possible worlds” we hear a lot of whistling to keep up courage, since we do not have a secure grasp of which worlds are possible. To the extent that Schauer is on Hart’s side here, I am on Schauer’s. What is “humanly necessary” is as important to jurisprudence as what is “strictly” (conceptually, metaphysically, nomically . . .) necessary27.
The views quoted above reveal that several legal philosophers interested in identifying and explaining aspects of law’s nature espouse a significantly more metaphysically modest understanding of what is involved in doing so than is sometimes attributed to that kind of legal philosophy. Given law’s human-made and societally situated and constituted character, such an understanding seems plausible, sensible and well supported.
1.3. Changing questions: diversity and development
As mentioned in section 1.2, in my view, inquiries into the nature of law are one important, and possible, type of jurisprudential inquiry28. However, this should not lead us to think, as some theorists mistakenly have, that inquiries into law’s nature focus on monolithic and unchanging questions and puzzles29. On the contrary, in my view it is vital to emphasize the senses in which, and the reasons for which, the questions and puzzles of legal philosophy, including legal philosophy focused on aspects of law’s nature; are plural, diverse, arise in and change over time; and are responsive to changing interests and concerns30. But does this present us with a puzzle? How can the questions of legal philosophy be plural, diverse, time- and context-dependent, yet the answers to those questions be about the nature of law, about those necessary properties of law that make it into what it is? The remainder of this section aims not so much to solve as to dissolve this apparent puzzle, revealing it to be more apparent than real.
The first point to note in this regard is that even brief reflection on law’s character indicates that it is a complex and multi-faceted phenomenon. Given, for example, the breadth and complexity of the social functions law performs, the intricate character of relations between its norms, and those norms’ manner of attempting to create for us reasons for action, it should strike us as highly plausible that law may possess numerous properties which mark it out as distinctive, and which make it into what it is. Moreover, it is also plausible that each of those properties that make law into what it is can be examined from a variety of different angles, in response to different puzzles and questions which strike us as interesting at a given time. The complex and multi-faceted character of law itself hence makes room for pluralism with regard to jurisprudential accounts of it: different theories of law can and do investigate different sets and subsets of those plausibly numerous properties that comprise law’s nature, and do so in multiple ways driven by changes in our sense of puzzlement with respect to them.
In addition, it is important to understand that, to construct successful theories of law, legal philosophers must select the aspect, or aspects, of their subject matter to focus upon, and then, within that selection, further choose which puzzles and questions to address in respect of that aspect, or those aspects, of law. No theory of law can be comprehensive in the sense of focusing on all of the properties comprising law’s nature, and on all of the puzzles that those properties might give rise to. Any such attempt would be overwhelmed by the voluminous issues, questions and topics to be addressed, and would run a high risk of failing to offer a focused and cogent account of any facet of law, in its attempt to address all of them. In the words of John Finnis, it would be less a theory of law, and more a “vast rubbish heap of miscellaneous facts described in a multitude of incommensurable terminologies”31.
This being so, legal philosophers seeking to identify and explain the nature of law must select some aspects of the nature of law, and some puzzles within those aspects of the nature of law upon which to focus. Some examples should help to further illuminate these ideas and begin to indicate the variety of factors that can influence such selection.
With respect to selecting which aspects of law’s nature to focus upon, often legal theorists make such choices in a somewhat reactive manner, by choosing to work on features of law that they believe have been neglected, under-explained or poorly explained in accounts of law which came before theirs. Redressing such perceived neglect, correcting errors of either emphasis or substance in other theorists’ accounts of law can be a strong driving force in motivating legal philosophers to take up pen and keyboard.
For H.L.A. Hart, it was John Austin’s neglect of the role of rules in law and how those rules are used to guide conduct, which provided the impetus for both his criticisms of the command theory approach and the development of his alternative account: the key to understanding legal systems lay in the union of primary and secondary rules, and in the attitudes toward and actions in terms of those rules held and undertaken by those who guide their conduct by them32. For Ronald Dworkin, it was H.L.A. Hart’s neglect of how legal materials generate and justify propositions of law in the argumentative and contested context of adjudication proceedings which prompted him to develop his own alternative powerful account of these facets of law, from which an entire legal, political and moral theory eventually grew33.
Sometimes, however, certain aspects of law’s nature come more acutely into focus, and strike us as in need of examination, not in response to the work of other legal philosophers, but because of shifts of focus and interest in neighboring and/or cognate disciplines. For example, a resurgence of interest among philosophers of language and of mind in Wittgenstein’s rule-following remarks in the latter decades of the 20th century34 found its way across to the legal philosophical community in the 1990s. As a result, many legal theorists at that time became interested in and began to address Wittgensteinian questions concerning the possibility of rule-following and the role of interpretation in grasping the meaning of rules, influenced by the movement of this intellectual current from philosophy of language and mind into philosophy of law35.
The above-mentioned examples indicate some of the reasons why jurisprudential attention shifts from one property or set of properties comprising law’s nature to another such property or set of properties. Sometimes, however, change comes in the form of a shift in legal philosophers’ sense of puzzlement with regard to one and the same feature of law. For example, we can think of the topic of law’s authority. In the early 1970s, the puzzle for Robert Paul Wolff was whether law’s possessing legitimate authority could be compatible with our duties of moral autonomy and rationality36. Some four decades later, however, the puzzle about authority for Nicole Roughan has shifted to how we should understand the character and legitimation of law’s authority in a transnational legal world featuring multiple competing such authorities37.
This example also indicates that, sometimes, changes in society and in governance arrangements – such as the proliferation of intra-, trans-, supra- and international legal regulation – influence both aspects of law that legal philosophers choose to focus on, and what is perceived to be puzzling about them. Roughan’s focus in this regard is on how we should understand legal authorities in the context of such developments. Some of my works arising from and motivated by these same societal changes have instead focused on the concept of a legal system, and whether it is still of use in understanding intra-, trans-, supra- and international legal phenomena38.
The waxing and waning of jurisprudential interest in the concept of a legal system itself furnishes us with another helpful example illustrating the fact of, and some of the reasons for, changing questions, puzzles and interests within legal philosophy about the nature of law. The late 1960s and early to mid-1970s witnessed a flurry of legal philosophical interest in questions surrounding the identity of legal systems and their continuity through time. For some legal philosophers, this interest was prompted by puzzles generated by the journey to political independence taken by certain former British colonies39. Others looked not beyond but within the United Kingdom, keen to explore the sense in which the Scots have their own legal system without their own state, the relations between the Scottish legal system and the 18th-century Articles and Acts of Union40, and the role Scots law plays in expressing and shaping national identity, including national political identity41.
Once these societal issues and the academic activity they generated ran their course, however, legal philosophers’ interest in the theory of legal systems waned dramatically, with little writing explicitly on this topic emerging from the late 1970s onwards. It is only relatively recently that new life has been breathed into this topic by the rapid growth of and increasing interest in intra- trans-, supra- and international governance arrangements. This time round, the focus is not, as it was in the post-colonial era, on how to think about states ceding territories which then go on to become independent states with separate legal systems, but rather on puzzles arising from the legal and other consequences of the coming together of independent polities in larger regional or global units of cooperation, and the relations between those larger units and their constituent parts42. In the case of the European Union (EU), the revival of interest in the theory of legal systems plausibly arises in part from the strong claims that this polity, and especially the Court of Justice of the European Union, consistently makes on its own behalf: EU law is much more than a series of intergovernmental agreements between states, and it represents “a new legal order”43, and has “created its own legal system”44. These claims have prompted some legal philosophers to focus on whether and to what extent they are true, what would render them true (or false), and hence whether it is apt and explanatorily helpful to understand supra-national law, and the relations between supra-national law and national law, in terms of the concept of a legal system45.
All of these examples illustrate change, and some of the factors that drive change in (i) the features of law that legal philosophers choose to focus on and (ii) the particular puzzles about any given feature of law which they choose to tackle. Law’s complex character allows for this “question and puzzle pluralism”: legal philosophers select sets and subsets of those properties comprising the nature of law to focus on, in response to changing societal and intellectual concerns. Indeed, as some of the examples considered in this section indicate, certain facets of the nature of law, and certain puzzles concerning those facets of the nature of law do not even present themselves as significant, or come into focus for legal philosophers until certain points in time, influenced by, for example, certain political and governmental changes. The methodological lesson to be drawn from all of this is clear: law is a multi-faceted and complex phenomenon, different aspects of which can be illuminated from different theoretical directions, at different times, and for different reasons. Accordingly, the questions of legal philosophy are manifold, various, arise in and change over time, and its quest is never-ending.
1.4. Directly evaluative legal philosophy versus indirectly evaluative legal philosophy
To return to the quotation from Neil MacCormick with which this chapter opens: is there any more need for a philosophy of law than for a philosophy of bus driving? The discussion thus far begins to indicate why we can answer this question in the affirmative. Law is not merely a matter of lawyers conveying houses, and effecting other practical, legal transactions, important though such matters be. Law is a complex, multi-faceted and far-reaching social institution that intervenes in and shapes many matters of significance to individuals and to the societies they live in. It makes sense at least to ask, and to attempt to answer, the question of whether this important phenomenon has a nature, and possesses certain distinctive features that make it into what it is. Moreover, given law’s involvement in so many important areas of social and political life, philosophy of law engages with and addresses an ever-developing array of questions and puzzles, responding to changing theoretical interests and societal circumstances.
In addition, law is a social phenomenon that claims comprehensiveness within its self-defined jurisdiction: law may not in fact regulate everything that it might within that jurisdiction, but in principle it claims that it could46. Moreover, law claims that it non-optionally applies to all those who fall within its self-defined jurisdiction, and plausibly operates by pre-empting claims over our actions and allegiances made by other normative phenomena such as morality and religion47. That law operates thus, and that it impacts upon many very important areas of our lives – including our personal, professional and business relationships, careers, possessions, duties as citizens, and civil, political and human rights – engenders further thoughts with regard to why we need to theorize about law more than we do about bus driving. Clearly, given its character and its reach, law should concern us more than bus driving should, is capable of having a more profound effect on the lives of individuals and of societies than bus driving does, and stands in need of critical examination in a way that bus driving does not. Is law ever justified in intervening in our lives in the profound way that it does? What, if anything, might justify and/or legitimate it? What critical standards ought law be held to, and what should our response be to it when it fails to meet them? Given the scope and effects of law’s operation, it is vital that we undertake theoretical work to answer these questions. Key methodological issues remain, however, regarding exactly how, and when, we should attempt to answer such questions in our jurisprudential theories.
