Bix_Theorizing about Law

Electronic copy available at: http://ssrn.com/abstract=1496403 1 Brian H. Bix, “Theorizing About Law” Abstract: To answer methodological questions about whether legal theory can be descriptive, or whether instead it must instead always include moral elements, one must first confront more basic (and philosophically prior) questions regarding the subject and objective of legal theorizing. Finding a stable subject for a “theory of law” is not a simple matter. Significant progress has been made by positing “our concept of ‘law’” as the proper focus for legal theories. There is a second foundational question of jurisprudence: what grounds the truth or falsity of legal propositions. Here, the range of tenable answers varies from the purely empirical to the interpretive to the heavily morality-dependent. However, even if one’s ultimate answer is ultimately purely empirical, the argument that gets one there may itself need to be deeply evaluative. Key words: Jurisprudence, legal positivism, natural law theory, hermeneutics, legal truth, historical jurisprudence Electronic copy available at: http://ssrn.com/abstract=1496403 2 Theorizing About Law Brian H. Bix1 Introduction What does it mean to have a theory of the nature of law? This is the most basic question of legal theory, yet it is often overlooked, and only rarely discussed at any length, even within the most prominent jurisprudential works.2 This article will offer a brief overview of the structural and methodological questions of legal theory, and will later also touch on a second foundational question of jurisprudence: what grounds the truth or falsity of legal propositions? As to the question of legal theory: at the risk of seeming simplistic, to have a theory is to have a subject of discussion, and to have some objective for that discussion. Therefore, legal theory’s first question should be: “What is the subject that a theory of law purports to be ‘theorizing’ about?” Obvious complications arise from the fact that “law” is usually understood to be a name for a collection of social institutions and practices. Additional complications are created by the fact that the institutions and practices usually referred to by “law” are in constant flux, changing not only from community to community, by also in any given community from one year to the next. How are we then to fix a stable subject of theorizing? 1 Frederick W. Thomas Professor of Law and Philosophy, University of Minnesota. This paper was prepared for presentation at the University of Paris, Nanterre, in May 2009. It was part of a Seminar entitled, “Positivism, Description, Interpretation,” and was a response to the following posed question: “Is a descriptive definition of law possible? Is a definition of law possible without any judgment of value? Is defining law a description of practices, of norms, of meanings?” I am grateful for the comments and suggestions of those present. I am particularly grateful for the detailed commentary of Mauro Barberis. 2 At least among works of English-language legal theory. I am familiar only with works written in, or translated into, English, and (here, and also elsewhere in this paper) I obviously cannot speak with any authority about works written in other languages that have not been translated into English. Electronic copy available at: http://ssrn.com/abstract=1496403 3 One philosophical response is to speculate that perhaps there is some Platonic essence, of which current and past legal systems are merely “shadows in the cave”3, imperfect instantiations. Or, to choose a more modern, more “fashionable” philosophical option, we might think that law is some “natural kind,” a category whose boundaries are somehow set by “the way the world is.”4 However, neither view about law seems tenable, and has never garnered assent among contemporary legal theorists.5 If the category “law” is not set by a metaphysical “higher world” or by the natural world, what does set those boundaries? We cannot depend on language to set the boundaries of the category, for language offers no constant boundaries either within or across languages. Among competent speakers of English, there remains significant disagreement about whether to apply the label “law” to a number of cases (international forms of regulation, the regulations of very evil regimes, the more informal and less- institution-bound forms of regulation found in some societies, etc.). Also, across communities: the English “law” and the German “Recht” have very different connotations, and some languages and some communities have no term at all that corresponds to what English-speakers mean by the general category term, “law.” 3 This is, of course, a reference to the image in Plato’s The Republic, according to which we are like prisoners chained to a cave, where we can only see the shadows a nearby fire projects on the wall, rather than directly observing the real objects. 4 Natural kinds analysis is a view about reference and meaning developed by Hilary Putnam, Saul Kripke, and others, in which the meaning and application (extension) of terms is set by the way the world is, not by our beliefs about those terms. See Hilary Putnam, “The Meaning of ‘Meaning,’” in Mind, Language and Reality, Cambridge University Press, Cambridge, 1975, pp. 215-271; Saul Kripke, Naming and Necessity, Harvard University Press, Cambridge, Mass., 1972. Sometimes natural kinds analysis is described more broadly, in terms of linguistic deference: that there are terms for whose meaning or extension we defer to experts (whether these experts are scientists, as with paradigmatic natural kinds terms like “gold” and “water,” or other types of experts). 5 The closest a contemporary theorist has come (at least among those writing in English) is Michael Moore’s suggestion that law could be seen as a “functional kind.” Michael S. Moore, Educating Oneself in Public: Critical Essays in Jurisprudence, Oxford University Press, Oxford, 2000, pp. 294-332. 4 In English-language legal theory, arguably the dominant approach6 is based neither on Platonic essences nor on natural kinds nor on simple linguistic usage. Instead, this position holds that theories of law are descriptions of the concept of law. Only once one has set a subject for theorizing can one turn to the objective of one’s theory: is one trying to describe a current practice or set of practices, to prescribe a different (better, perhaps more just) form of the practice (perhaps a better way to decide legal disputes), or some objective between the two extremes (e.g., Ronald Dworkin’s constructive interpretation7)? And one can ask, further, whether obtaining this objective will involve (or necessarily involve) moral evaluation. Part I of the Paper will offer a (somewhat opinionated) typological overview of current approaches to jurisprudence. Part II will explore one approach to theories of law, conceptual analysis. And Part III will briefly consider the other foundational question of jurisprudence, the grounding of legal propositions, before concluding. I. Types of Legal Theory8 6 This approach has very prominent supporters -- e.g., H. L. A. Hart (e.g., The Concept of Law, rev. ed., Oxford University Press, Oxford, 1994), Joseph Raz, (e.g., Ethics in the Public Domain, Oxford University Press, Oxford, 1994; and Between Authority and Interpretation, Oxford University Press, Oxford, 2009), and Jules Coleman (e.g., The Practice of Principle, Oxford University Press, Oxford, 2001). However, there have also been a number of important dissenters, for example, John Finnis (e.g., Natural Law and Natural Rights, Oxford University Press, Oxford, 1980), Ronald Dworkin (e.g., Law’s Empire, Harvard University Press, Cambridge, Mass., 1986), Stephen Perry (e.g., “Interpretation and Methodology in Legal Theory,” in Andrei Marmor (ed.), Law and Interpretation, Oxford University Press, Oxford, 1995, pp. 97- 135), and Brian Leiter (e.g., Naturalizing Jurisprudence, Oxford University Press, Oxford, 2006). I consider some of the arguments supporting and dissenting from conceptual analysis in jurisprudence in Brian H. Bix, “Joseph Raz and Conceptual Analysis,” American Philosophical Association Newsletter on Philosophy and Law, vol. 06(2) (2007), pp. 1-7, reprinted at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=948766. 7 Ronald Dworkin, Law’s Empire, Harvard University Press, Cambridge, Mass., 1986. 8 As the following listing indicates, the scope of Jurisprudence discussed generally excludes legal dogmatics (analysis of legal doctrine within a particular legal system). Prof. Barberis, in his work, and in his discussion of my article, focuses on legal dogmatics. I respond to Prof. Barberis’s work in an appendix to this article. 5 There are sharply different starting points, and vastly different understandings of what the objective of theorizing should be. What follows is a quick (and overlapping) typology of the way theories within Jurisprudence have been, or might be, distinguished. One basic difference is between those who focus on law as a certain kind of social institution and those who focus on law as a particular contribution to practical reasoning – to determining what the right thing to do is, all things considered. The legal positivists might be seen as the paradigmatic examples of the first part of this dichotomy: as social theorists or social scientists of the law.9 The traditional natural law theorists (from Thomas Aquinas to John Finnis10 and beyond) focus more on the role of law in practical reasoning: more precisely, on the way that law can (according to their view), under proper circumstances, create new moral obligations for citizens. Among those who take a social science or social theory approach to law, one might further distinguish those who think that such studies should approximate as much as possible the approaches of the empirical sciences (like physics and biology), as against those who believe that social science is, by its nature, an entirely different sort of enterprise (requiring a hermeneutic, Verstehen approach). An example of this division comes from within legal positivism, where H. L. A. Hart argued against his predecessor, John Austin, claiming that Austin’s command theory did not take sufficiently into account the perspective of those who take an “internal perspective” on the law -- that is, 9 Among the legal positivists, both John Austin and Hans Kelsen speak of a “science of law,” John Austin, Lectures on Jurisprudence, or The Philosophy of Positive Law (R. Campbell, ed., Thoemme Press reprint, 2002) (initially published, 1879); Hans Kelsen, Introduction to the Problems of Legal Theory (B. L. Paulson & S. L. Paulson, trans., Oxford, 1992), while H. L. A. Hart opposes a scientific approach in favor of a hermeneutic (Verstehen) approach; however, Hart’s social theory approach to law can be seen in his description of his own theory as a kind of “descriptive sociology.” H. L. A. Hart, The Concept of Law, rev. ed., Oxford University Press, Oxford, 1994, at p. v. 10 Thomas Aquinas, The Treatise on Law: St. Thomas Aquinas Summa Theologiae I-II; qq. 90-97(R. J. Henle, S. J., ed.), University of Notre Dame Press, Notre Dame, 1993) (first published, 1274); John Finnis, Natural Law and Natural Rights, Oxford University Presss, Oxford, 1980. 6 those who accept that law as giving them “reasons for action.”11 Frederick Schauer, in turn, has responded that Hart’s approach gives too much weight to those who view law as giving something like moral reasons, and it would be both better and more accurate for legal theories to be, in a sense, “agnostic” regarding the moral weight of government enactments.12 These debates aside, nearly all those who see themselves as (social) scientists of law would be inclined towards a value-free approach rather than one that has moral evaluative elements.13 By contrast, those who see law as focusing on how law changes our (moral) reasons for action, will be much more likely to include moral criteria for the category “law” and moral evaluation within their theories of law. A second difference is between those who emphasize accurate description of current practices, on one hand, and those who focus on the ideal towards which law is said to aim, on the other. A diverse collection of theorists, including Lon Fuller, Nigel Simmonds, and (perhaps, though this is less clear) John Finnis,14 argue that the proper focus of a theory of law is the ideal towards which law, by its nature, aspires. The ideal- focused theorists argue that it is of the essence of law that it aims at justice or “correctness”,15 or that one can only understand certain activities (whether games or legal practices) if one knows the objective towards which they strive. As the ideal-focused 11 Compare H. L. A. Hart, The Concept of Law, rev. ed., Oxford University Press, Oxford, 1994, pp. 18- 123, with John Austin, The Province of Jurisprudence Determined (Wilfrid E. Rumble, ed.), Cambridge University Press, Cambridge, 1995 (first published 1832). 12 Frederick Schauer, “Positivism Through Thick and Thin,” in Brian Bix (ed.), Analyzing Law: New Essays in Legal Theory, Oxford University Press, Oxford, 1998, pp. 65-78. 13 Even descriptive theorists and social scientists (and some physical scientists) recognize that there are forms of evaluation and selection in constructing theories and models, if only to select for what is important or coherent, most simple or most cogent. However, these theorists sharply distinguish this sort of meta- theoretical evaluation from evaluation on moral or political grounds. 14 Lon L. Fuller, The Morality of Law, rev. ed., Yale University Press, New Haven, 1969; Nigel Simmonds, Law as a Moral Idea, Oxford University Press, Oxford, 2007; John Finnis, Natural Law and Natural Rights, Oxford University Press, Oxford, 1980. 15 Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism (Stanley L. Paulson & Bonnie Litschewski Paulson, trans.), Oxford University Press, Oxford, 2002. 7 theorists nearly always claim a moral ideal for law, they inevitably agree with the view that moral evaluation is a necessary part of constructing a theory of law. Yet a third difference is between those who assume or assert that one’s theory of the nature of law has implications for many or most individual legal disputes, and those who argue (or take for granted) that general theories of law have little or nothing to say about how to decide particular disputes within individual legal systems. Among those in the “make a difference” category here would be Ronald Dworkin, clearly, and, less certainly, Gustav Radbruch and Robert Alexy.16 One might note that all those mentioned, the theorists who believe that one’s theory of law makes a difference for individual (and mundane) cases, also assert that moral evaluation plays a role in constructing a theory of law. However, these are also all theorists who have been accused of confusing a theory of law with a theory of judicial decision-making, so perhaps (a critic might observe) the role of moral evaluation in their theories might not be surprising, for even the hardest of hard-core legal positivists (e.g., Joseph Raz) does not contest that moral evaluation should play a role in deciding individual legal disputes. A fourth distinction is between those who argue that law is, and should be viewed as, “bottom up,” grounded in the spirit and customs of a people, as against those who argue that law is, or should be, understood “top down,” as the rules imposed by authorities. The former is exemplified by the “historical jurisprudence school” of Friedrich Karl von Savigny and Sir Henry Maine,17 and the commentators of the classical 16 Ronald Dworkin, Law’s Empire, Harvard University Press, Cambridge, Mass., 1986; Gustav Radbruch, “Statutory Lawlessness and Supra-Statutory Law (1946),” Oxford Journal of Legal Studies, vol. 26 (2006), pp. 1-11; Robert Alexy, The Argument from Injustice: A Reply to Legal Positivism (Stanley L. Paulson & Bonnie Litschewski Paulson, trans.), Oxford University Press, Oxford, 2002. 17 Friedrich Karl von Savigny, On the Vocation of Our Age for Legislation and Jurisprudence (Abraham Hayward, trans.), Arno, New York, 1975; Henry Sumner Maine, Ancient Law, University of Tucson Press, Tucson, 1986 (first published, 1861). Maine and, to a lesser extent, von Savigny, are the figures most often 8 Common Law in England (e.g., Sir Edward Coke, John Selden, and Sir Matthew Hale).18 The top-down approach is, of course, exemplified by the “command theories” of John Austin and Jeremy Bentham.19 It is not a coincidence that legal positivists are prominently represented among “top down” theorists, for “top down” theories present law as something created by particular official actions, while “bottom up” theories often make the sort of claims of “immanent law” -- judges “discovering” legal norms that were already present -- that seem more consistent with traditional natural law theory or the “modern natural law” theories of Lon Fuller and Ronald Dworkin.20 That said, there is no reason that one could not have a historical jurisprudence approach that was carefully descriptive: making claims (e.g.) that this is the Geist of this country at this time, or its precise place along some evolutationary path, while claiming that this claim or theory is a simple description of what is the case, without any moral evaluation being involved. A fifth distinction might be drawn between those theories that search for knowledge (for its own sake) as against those that search for justice. Much of analytical jurisprudence presents itself as aiming primarily at discovering knowledge: the nature of law, the nature of legal rights, and so on, though a few analytical legal theorists will sometimes claim that their conclusions also have repercussions for how law and legal officials should operate. By contrast, the jurisprudential movements that have been most associated with an evolutionary approach to law (at least to English-language commentators on Jurisprudence). I discuss the Historical School of Jurisprudence further in the Appendix, below, in the course of commenting on Prof. Barberis’s article. 18 Harold J. Berman, “The Origins of Historical Jurisprudence: Coke, Selden, Hale,” Yale Law Journal, vol. 103 (1994), pp. 1651-1738. 19 John Austin, The Province of Jurisprudence Determined (Wilfrid E. Rumble, ed.), Cambridge University Press, Cambridge, 1995 (first published, 1832); and Lectures on Jurisprudence, or The Philosophy of Positive Law (R. Campbell, ed.), Thoemmes Press reprint, Bristol, 2002 (first published, 1879); Jeremy Bentham, Of Laws in General (H. L. A. Hart, ed.), University of London Athlone Press, London, 1970. 20 Lon L. Fuller, The Morality of Law, rev. ed., Yale University Press, New Haven, 1969; Ronald Dworkin, Law’s Empire, Harvard University Press, Cambridge, Mass., 1986. 9 influent