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Law as an Interactive Kind: On the Concept and the Nature of Law

Published online by Cambridge University Press:  06 February 2018

Arie Rosen
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Abstract

When exploring the relations between the concept and the nature of law, ample philosophical reflection has been dedicated to the relations between the intension of terms (or the content of concepts) and their extension. Much less consideration has been given to the causal relations between concept and thing within socially constructed entities. This paper examines the interactive causal relationship between law and the concept we have of it and reflects on its implications for legal philosophy. First, it explains the causal role played by concepts in processes of social construction and applies this explanation to the analysis of the special case of law. Second, it compares this causal role played by the concept of law to the role assigned to it in the context of externalist theories of meaning and mental content. Lastly, it demonstrates the advantages of seeing law as an interactive kind in answering some contemporary methodological difficulties stemming from conceptual plurality or uncertainty, and in opening new avenues for research in legal philosophy.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 31 , Issue 1 , February 2018 , pp. 125 - 149
Copyright
Copyright © Canadian Journal of Law and Jurisprudence 2018 

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References

1. See, for example, Joseph Raz, “Two Views of the Nature of the Theory of Law: A Partial Comparison” (1998) 4:03 Legal Theory 249.

2. See, in particular, Andrei Marmor, Interpretation and Legal Theory, 2nd ed (Hart, 2005) at 71-78.

3. Leiter, Brian, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford University Press, 2007)CrossRefGoogle Scholar at 132-35. Leiter’s work builds here, in part, on earlier work by Stephen Perry, acknowledging that evident disagreement regarding the essential features of law and its function pose a problem for conceptual analysis.

4. Andrei Marmor, “Farewell to Conceptual Analysis (in Jurisprudence)” in Wil Waluchow & Stefan Sciaraffa, eds, Philosophical Foundations of the Nature Law (Oxford University Press, 2013) 209.

5. Aside from relating positive law to God’s eternal law, natural law theory also claims that human law has a particular form—and, at least in part, a particular content too that is natural and universal. E.g., Thomas Aquinas, Summa Theologiæ 1a2ae Q. 91.3 (“Are There Human Laws?”).

6. See Ronald Dworkin, “Hart’s Postscript and the Character of Political Philosophy” (2004) 24:1 OJLS 1. For a compelling criticism see Dennis M Patterson, “Dworkin on the Semantics of Legal and Political Concepts” (2006) 26:3 OJLS 545.

7. See, for example, HLA Hart, The Concept of Law, 2nd ed (Oxford University Press, 1994) at ch 3; Ronald Dworkin, Law’s Empire (Harvard University Press, 1986) at 14-15; Joseph Raz, “Can There Be a Theory of Law?” in Between Authority and Interpretation: On the Theory of Law and Practical Reason Oxford University Press, 2009) 17. See also Leslie Green, “The Concept of Law Revisited” (1996) 94:6 Mich Law Rev 1687.

8. See generally John R Searle, The Construction of Social Reality (Free Press, 1995). Cf Max Weber, Economy and Society: An Outline of Interpretive Sociology, translated by Ephraim Fischoff et al, Guenther Roth & Claus Wittich, eds (University of California Press, 1968) at 4-24. Cf Hans Kelsen, Pure Theory of Law, translated by Max Knight (University of California Press, 1967) at 4-15; Hart, supra note 7 at 82-91.

9. Searle, supra note 8 at 68.

10. The term ‘law’ is notoriously ambiguous, potentially referring to distinct social, institutional and normative phenomena. As indicated in the text above, this article uses the term ‘law’ as referring to a normative phenomenon, that is, to the sum of rules, principles etc., that comprise the body of legally valid norms.

11. This insight has been lucidly articulated by Peter L Berger & Thomas Luckmann, The Social Construction of Reality: A Treatise in the Sociology of Knowledge (Anchor Books, 1967) at 128. For a different view, see Frederick Schauer, “The Social Construction of the Concept of Law: A Reply to Julie Dickson” (2005) 25:3 OJLS 493. The language of ‘design’ and ‘purpose’ that permeates Searle’s account may well be at the bottom of this confusion. See, e.g., Searle, supra note 8 at 56.

12. Searle, supra note 8 at 36 (on the primacy of social acts over social facts). Hart also saw law as constituted by contingent human activity that has its own distinctive history and rationale. For an insightful account, see Green, supra note 7 at 1689-97.

13. Ian Hacking, The Social Construction of What? (Harvard University Press, 1999).

14. Ibid at 103.

15. For a discussion of the applicability of the term to non-human kinds see Muhammad Ali Khalidi, “Interactive Kinds” (2010) 61 British J Phil Sci 335.

16. This aspect is under-explored in Searle’s theory, but compare to his discussion of the self-referentiality of social concepts at Searle, supra note 8 at 32-34.

17. Raz suggests that the reason for the disjunction lies in the fallibility of our cognitive abilities. See Raz, supra note 7. This is inaccurate. Although mistake is possible (and prevalent), the fundamental failure has to do with the social-dependence and partiality of our cognitive abilities. Our common understanding of law is shaped under different constraints than our scientific or otherwise rigorous account of this phenomenon. When Raz speaks of mistake, he is actually referring to a gap between these two discourses.

18. Hilary Putnam, “The Meaning of Meaning” in Philosophical Papers (Cambridge, 1975) 215.

19. Putnam’s insight applies to all natural kinds, but is not limited only to them. See infra note 24.

20. Putnam concludes that when we offer an account of the meaning of a term, we should therefore offer “… a finite sequence, or ‘vector’, whose components should certainly include … (1) the syntactic markers that apply to the word, e.g. ‘noun’; (2) the semantic markers that apply to the word, e.g. ‘animal’, ‘period of time’; (3) a description of the additional features of the stereotype, if any; (4) a description of the extension.” Putnam, supra note 18 at 269.

21. Putnam calls this the ‘division of linguistic labor’. Ibid at 227-29.

22. Tyler Burge, “Individualism and the Mental” (1974) 4 Midwest Studies in Philosophy 73.

23. Jules L Coleman & Ori Simchen, “Law” (2003) 9:1 Legal Theory 1.

24. Ibid at 30. As an aside to my main criticism of Coleman and Simchen’s work, as detailed below, I am also skeptical about the decisive role they assign to the “average speaker”. If anything, the use of the term ‘law’ seems a classic case of division of linguistic labour, in which a professional caste is deferred to for determining the extension of the term.

25. Ibid at 35.

26. Ibid.

27. Ibid at 30.

28. Khalidi, supra note 15.

29. Another way to go about this point is to invoke Kripke’s notion of ‘initial baptism’. Saul A Kripke, Naming and Necessity, new ed (Harvard University Press, 1980) at 135-39. If we imagine a baptism of the concept of law somewhere in the history of the European legal tradition, then what changed over time is the thing itself that was captured by the initial reference.

30. Liam Murphy, “Razian Concepts” (2007) 6 APA Newsletter on Philosophy and Law 27.

31. John Rawls, A Theory of Justice, revised ed (Harvard University Press, 1971). Compare to the discussion of the concept of justice in John Rawls, “Legal Obligation and the Duty of Fair Play” in Hook, Sidney, ed, Law and Philosophy: A Symposium (New York University Press, 1964)Google Scholar at 13.

32. Hart, supra note 7 at vi.

33. Ibid.

34. See supra note 8. See also Green, supra note 7.

35. Raz, supra note 1 at 255.

36. Ibid at 26.

37. Ibid at 255-56.

38. Cf Hilary Putnam, “Explanation and Reference” in Pearce, Glenn & Maynard, Patrick, eds, Conceptual Change, Synthese Library 52 (Springer Netherlands, 1973) 199.CrossRefGoogle Scholar

39. Putnam, supra note 18 at 269.

40. In other places Raz seems to acknowledge this. Consider the following: “I regard the explanation of the nature of law as the primary task of the theory of law. That the explanation of the concept of law is one of its secondary tasks is a result of the fact that part of the task of explaining the nature of law is to explain how people perceive the law, and therefore, where the law exists in a country whose population has the concept of law, it becomes relevant to know whether the law is affected by its concept.” Raz, supra note 7 at 23.

41. Emile Durkheim, The Division of Labour in Society, translated by WD Halls (Palgrave Macmillan, 1984) at 122. See also Roger Cotterrell, Emile Durkheim: Law in a Moral Domain (Edinburgh, 1999) at 106-18; Anthony Giddens, Capitalism and Modern Social Theory: An Analysis of the Writings of Marx, Durkheim and Max Weber (Cambridge University Press, 1971) at 65-81.

42. Leiter, supra note 3 at 134.

43. See, for example, Stephen R Perry, “Interpretation and methodology in legal theory” in Andrei Marmor, ed, Law and Interpretation: Essays in Legal Philosophy (Clarendon Press, 1995) 97 at 107 (“in principle, law can simultaneously be the subject of both internal and external theories, just as human beings can simultaneously be the subject of both biological and psychological theories.”). On the relation between our inquiry into the concept of law and Hart’s internal perspective, see text accompanying note 63 below.

44. Putnam, supra note 18 at 267.

45. Cf Searle, supra note 8 at 35-36, 65.

46. PF Strawson, Analysis and Metaphysics: An Introduction to Philosophy (Oxford University Press, 1992) at ch 2.

47. Ibid at 19.

48. E.g., Gilbert Ryle, “Abstractions” (1962) 1:01 Dialogue 5.

49. Only entities that are distinct can be in relations of causation to each other.

50. Liam Murphy, “Concepts of Law” (2005) 30 Aust J Legal Phil 1 at 7.

51. Danny Priel, “The Boundaries of Law and the Purpose of Legal Philosophy” (2008) 27:6 Law & Phil 43 at 656-61.

52. Ibid at 658.

53. See quote accompanying supra note 42.

54. Raz, supra note 1 at 26.

55. To get a sense of the similarity, see Liam Murphy, “Better to See Law This Way” (2008) 83 NYUL Rev 1088 at 1093 (“if there is a concept of law that ‘we all share,’ it is indeterminate or partly ambiguous.”).

56. Perry, supra note 43 at 128.

57. Ibid at 118.

58. See text accompanying notes 43-44 above.

59. Raz, supra note 7 at 27.

60. Ibid at 25.

61. On the value of conceptual inquiry as an exercise of self-understanding, see ibid at 27 (“The notion of law as designating a type of social institution … is a common concept in our society … entrenched in our society’s self-understanding. … In large measure, what we study when we study the nature of law is the nature of our own self-understanding. The identification of a certain social institution as law … is part of the self-consciousness, of the way we conceive and understand our society. Certain institutions are thought of as legal institutions. That consciousness is part of what we study when we inquire into the nature of law.”).

62. Cf Searle, supra note 8 at 98. For the origins of this methodological commitment, see Hart, supra note 7 at 114-16, 254-56. See also Neil MacCormick, Legal Reasoning and Legal Theory (Oxford University Press, 1978) at 139-40.

63. Cf Weber, supra note 8 at 4 (regarding the meaning of social action). Cf Searle, supra note 8 at 5.

64. Raz, supra note 7.

65. On the notion of metaphysical necessity, see Kripke, supra note 29.

66. The notion of essential properties seems to go to properties that are common to all members of the extension of the concept. If we accept Coleman and Simchen’s sensible claim that relations of sameness to the paradigmatic sample of law are not determined by means of expertise, then it is not at all clear that there would be a common essence to all members of the extension.