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Describing Law

Published online by Cambridge University Press:  18 February 2020

Raff Donelson
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Abstract

Legal philosophers make a number of bold, contentious claims about the nature of law. For instance, some claim that law necessarily involves coercion, while others disagree. Some claim that all law enjoys presumptive moral validity, while others disagree. We can see these claims in at least three, mutually exclusive ways: (1) We can see them as descriptions of law’s nature (descriptivism), (2) we can see them as expressing non-descriptive attitudes of the legal philosophers in question (expressivism), or (3) we can see them as practical claims about how we should view law or order our society (pragmatism). This paper argues that we should understand these claims in the pragmatist way, as claims about how we should view law or order society.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 33 , Issue 1 , February 2020 , pp. 85 - 106
Copyright
© The Author(s) 2020

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Footnotes

I dedicate this paper to my friend and mentor Kyla Ebels-Duggan. For helpful written feedback on this project, I thank Crystal Allen-Gunasekera, Thomas Crocker, Jennifer Frey, Sandy Goldberg, Ken Himma, Brian Leiter, and Hillary Nye. I also had the benefit of helpful discussion of this paper at the Australasian Society of Legal Philosophy Conference in Auckland, the Central States Philosophical Association Conference in Lincoln, the Legal Theory Research Group in Edinburgh, the Jurisprudence Discussion Group in Oxford, and the South Carolina Philosophical Society Conference in Columbia. Finally, I thank the helpful and patient editors at this Journal.

References

1. What I mean by descriptivism bears no relation to a theory of reference.

2. See Davidson, Donald, “Truth and Meaning” in Davidson, Donald, ed, Inquiries into Truth and Interpretation (Oxford University Press, 1984) at 27Google Scholar.

3. This is fairly similar to what Glasgow calls “the conceptual question” in philosophy of race. I do not call it that because, if one is not an externalist about conceptual content, it looks like Glasgow’s conceptual question asks after people’s thoughts. This could, in turn, bias our answer to the question. See Glasgow, Joshua, A Theory of Race (Routledge, 2009)Google Scholar.

4. There are puzzles one can raise about the dependence relation. “Doesn’t a lab-created diamond depend on human thoughts for its existence?” one might ask. Still, I take the distinction to be fairly intuitive. Little hangs on how we precisely draw the distinction between natural and social kinds; in fact, one could deny the distinction altogether, since all I need is a distinction between these and abstract kinds.

5. Mason refers to these sorts of collections as unnatural kinds. Rebecca Mason, “The metaphysics of social kinds” (2016) 11:12 Philosophy Compass 841 at 842.

6. Leiter, Brian, “Objectivity, Morality, Adjudication” in Leiter, Brian, ed, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford University Press, 2007) at 231CrossRefGoogle Scholar.

7. In case the reader is wondering about a case of this: I might learn something about money, a social kind, by determining that a set of claims about money are logically incompatible. Determining the logical relations between a set of propositions is a decidedly non-empirical, a priori affair.

8. For disagreement on this score, see Joachim Horvath, “Conceptual analysis and natural kinds: the case of knowledge” (2016) 193:1 Synthese 167. He suggests that one cannot infer from the what-kind question to an epistemological question. He claims that one has to go through a semantic question, namely what-kind of concept does x name. I’m not sure if his discussion is limited only to natural kinds or if he thinks he is making a broader point. I tend to think that some of the arguments he raises, if successful, show that knowledge is not a natural kind, not just not a natural kind concept.

9. See, e.g., Boyd, Richard, “How to be a Moral Realist” in Sayre-McCord, Geoffrey, ed, Essays on Moral Realism (Cornell University Press, 1988) 181Google Scholar; Peter Railton, “Moral Realism” (1986) 95:2 The Philosophical Rev 163; Sturgeon, Nicholas, “Moral Explanations” in Copp, David & Zimmerman, David, eds, Morality, Reason and Truth: New Essays on the Foundations of Ethics (Rowman & Allanheld, 1985) 49Google Scholar.

10. See, e.g., Shafer-Landau, Russ, Moral Realism: A Defence (Oxford University Press, 2003)CrossRefGoogle Scholar; Enoch, David, Taking Morality Seriously: A Defense of Robust Realism (Oxford University Press, 2011)CrossRefGoogle Scholar; Parfit, Derek, On What Matters: Volume Two (Oxford University Press, 2011)Google Scholar.

11. Kornblith, Hilary, Knowledge and its Place in Nature (Oxford University Press, 2002)CrossRefGoogle Scholar.

12. But see Colin Radford, “Knowledge—by examples” (1966) 27:1 Analysis 1; Blake Myers-Schulz & Eric Schwitzgebel, “Knowing That P without Believing That P” (2013) 47:2 Noûs 371.

13. This comes from a case that reached the US Courts of Appeals many years ago. United States v Jewell (1976), 532 F 2d 697 (9th Cir, United States) (J Kennedy, dissenting).

14. Brian Leiter, “The Demarcation Problem in Jurisprudence: A New Case for Scepticism” (2011) 31:4 Oxford J Legal Stud 663 at 666.

15. Ibid.

16. Ibid.

17. Ibid.

18. I do not, like many, call this conceptual analysis because that moniker is ambiguous.

19. Brian Leiter, “Legal Realism, Hard Positivism, and the Limits of Conceptual Analysis”, supra note 6. To be fair, I think Leiter’s real answer is “very limited.” Ibid at 133-35.

20. James Harden seems to think so.

21. This objection stems from a very helpful conversation with Crystal Allen-Gunasekera.

22. For a defense of conceptual analysis that works like this, see Jackson, Frank, From Metaphysics to Ethics: A Defence of Conceptual Analysis (Oxford University Press, 1998)Google Scholar.

23. Note that the claims are supposed to be relatively uncontroversial, not necessarily analytic or ‘conceptual’ truths, if there are such things.

24. For examples of its use, see Lynch, Michael P, Truth as One and Many (Oxford University Press, 2009)CrossRefGoogle Scholar (for truth); Prinz, Jesse J, Furnishing the Mind: Concepts and Their Perceptual Basis (MIT Press, 2002)CrossRefGoogle Scholar (for concepts); Daniel M Haybron, “What Do We Want from a Theory of Happiness?” (2003) 34:3 Metaphilosophy 305 (for happiness).

25. Note that this is not yet a commitment to metaphysical realism. I only said that reality might be opaque, that is, unknown to us, not that reality might be unknowable to us. The latter claim, not the former, expresses metaphysical realism.

26. Plato famously held abstract kinds were causally efficacious; one can see this view on offer in works like the Phaedo, the Timaeus, and the Sophist. For a contemporary argument defending that view, see Fiona Leigh, “Restless Forms and Changeless Causes” (2012) 112:2 Proceedings of the Aristotelian Society 239.

27. Clearly, sometimes disobedience will make people safer. Disobeying, for instance, the American Fugitive Slave Act, made people safer than obedience.

28. Hobbes, Thomas, “Leviathan” in Burtt, Edwin A, ed, The English Philosophers from Bacon to Mill: The Golden Age of English Philosophy (Random House, 1939)Google Scholar.

29. I thank Ken Himma for valuable discussion on the topics of this paragraph.

30. Plato maintains this; see Plato, “Phaedo” translated by Hugh Tredennick in Edith Hamilton & Huntington Cairns, eds, Plato: The Collected Dialogues (Princeton University Press, 1961) at 78d.

31. There is a similar way that one might try to circumvent the what-kind question and similar response to that plan. One might think that there are bold claims that are vindicated on either answer to the what-kind question, and one might take this as evidence that one can skip answering that question. Again, if there were some straightforward way to show that, whether law is investigable by empirical or aprioristic means, p is true about law, it is hard to see how p could be controversial and thus qualify as a bold claim. Instead, p is likely to be one of the truisms. I thank Euan MacDonald for pressing this worry.

32. For those who worry that I put an obviously invalid argument in the mouth of an interlocutor, I am aware that the argument as stated is technically invalid. There is a suppressed premise here, that law is an abstract kind or a social kind. Once that is in place, the argument is not obviously invalid.

33. Field, Hartry, Science Without Numbers (Princeton University Press, 1980)Google Scholar.

34. I do not use eliminativism in the same sense as Liam Murphy, What Makes Law: An Introduction to the Philosophy of Law (Cambridge University Press, 2014). There, Murphy means refusing to talk about law. Instead, I mean the metaphysical thesis that “law” has no referent. For a careful discussion of “eliminativism” in jurisprudence, see Hillary Nye, “Does Law Exist?” [forthcoming].

35. For a helpful overview of the debate, see generally, Mills, Charles, “Critical Philosophy of Race” in Cappelen, Herman, Szabó Gendler, Tamar, & Hawthorne, John, eds, Oxford Handbook of Philosophical Methodology (Oxford University Press, 2016) 709Google Scholar.

36. Hereafter, I call sentences in D “D-sentences”.

37. This phrase is borrowed from Goldberg, Sanford G, Assertion: On the Philosophical Significance of Assertoric Speech (Oxford University Press, 2015)Google Scholar at ix.

38. Famous advocates of this view include Brandom, Robert, Making it Explicit: Reasoning, Representing, and Discursive Commitment (Harvard University Press, 1994)Google Scholar; Keith DeRose, “Assertion, knowledge, and context” (2002) 111:2 The Philosophical Rev 167; Elizabeth Fricker, “Second-Hand Knowledge” (2006) 73:3 Philosophy and Phenomenological Research 592; Hawthorne, John, Knowledge and Lotteries (Oxford University Press, 2003)CrossRefGoogle Scholar; Stanley, Jason, Knowledge and Practical Interests (Oxford University Press, 2005)CrossRefGoogle Scholar; John Turri, “Knowledge and the Norm of Assertion: A Simple Test” (2015) 192:2 Synthese 385; Unger, Peter, Ignorance: A Case for Scepticism (Oxford University Press, 1975)Google Scholar; and Williamson, Timothy, Knowledge and its Limits (Oxford University Press, 2000)Google Scholar.

39. Jennifer Lackey, “Norms of Assertion” (2007) 41:4 Noûs 594 at 609.

40. For this kind of development in moral theory, see Blackburn, Simon, Essays in Quasi-Realism (Oxford University Press, 1993)Google Scholar.

41. For this kind of development in moral theory, see Gibbard, Allan, Thinking How to Live (Harvard University Press, 2003)Google Scholar.

42. Ayer, AJ, Language, Truth and Logic (Penguin, 1946)Google Scholar; Hare, RM, The Language of Morals (Oxford University Press, 1952)Google Scholar; Stevenson, Charles, Facts and Values: Studies in Ethical Analysis (Yale University Press, 1963)Google Scholar.

43. See Kevin Toh, “Hart’s Expressivism and His Benthamite Project” (2005) 11:2 Legal Theory 77. To be clear, Toh offers an expressivist reading on first-order claims about law, not second-order (or theoretical) claims about law. To illustrate the difference, the ‘first-order expressivist’ gives an expressivist take on a sentence like “Public urination is illegal in this jurisdiction,” while the ‘second-order expressivist’ gives an expressivist take on a sentence like “Illegality consists in whatever a court is likely to condemn with sanctions.”

44. Projectivism, emotivism, prescriptivism, quasi-realism, non-cognitivism—these are just some examples.

45. This is supposed to be broad enough to include views on which the discourse in question is thought to express speaker suggestions meant to influence the affective faculties of the listener, such as Isenberg. See Arnold Isenberg, “Critical Communication” (1949) 58:4 The Philosophical Rev 330. One might then wonder about the difference between an expressivist interpretation of jurisprudential discourse, which makes suggestions to the listeners about how to think about something, and a pragmatist interpretation on which jurisprudential discourse offers claims about how to think about something, claims that are to be adjudicated on the basis of practical reasons. The difference lies in the semantic glosses each theory has. The expressivist is offering a picture of the semantics of jurisprudential discourse; whereas, the pragmatist offers no picture of the semantics, just a picture of the norms by which one judges the correctness of jurisprudential discourse. I thank Mary Sirridge for helpful feedback on this point.

46. Braithwaite, RB, An Empiricist’s View of the Nature of Religious Belief (Cambridge University Press, 1955)Google Scholar.

47. Brandom, Robert, Articulating Reasons: An Introduction to Inferentialism (Harvard University Press, 2000)Google Scholar.

48. I use implicated in the sense of a Gricean implicatures, not a logical implication or a logical entailment. See generally, Paul Grice, Studies in the Ways of Words (Harvard University Press, 1989). What is implicated (in this sense) differs from what is logically entailed. For instance, if I say, “I have a doctoral degree,” that (Gricean) implicates that I have only one doctoral degree. However, that is not logically entailed by the prior statement. “I have a doctoral degree” entails that I have at least one. If I have two doctoral degrees, saying that I have one is not false. I mention this all in order to prevent a certain misunderstanding. To see the possible misunderstanding, consider the fact that paying a compliment in a certain setting can implicate that one has a desire with respect to the object of the compliment. For instance, “That Riesling smells wonderful” may implicate that the speaker desires to drink Riesling. The existence of implicatures may make it seem as if the compliment expresses a desire in the sense meant by expressivists. It does not because what is implicated by a statement differs from the statement itself and its logical entailments. Expressivists aim to gloss the statement itself and its entailments.

49. For readers less familiar with the philosophy of language, a truthbearer is something that could be true such as a belief, a proposition, or a declarative sentence.

50. For its first clear articulation, see Peter Geach, “Assertion” (1965) 74:4 Philosophical Rev 449 at 463.

51. For others who have also raised this sort of problem for moral expressivism, see Jonas Olson, “The Freshman Objection to Expressivism and What to Make of It” (2010) 23:1 Ratio 87; Cuneo, Terrence, “Saying what we Mean: An Argument against Expressivism” in Shafer-Landau, Russ, ed, Oxford Studies in Metaethics, vol 1 (Oxford University Press, 2006) 35Google Scholar.

52. One might think that content and semantic externalists—that is, those who claim that meaning of our thoughts and words are determined by things outside of own minds—should have no problem with a massive error theory of just the kind I mention. Such externalists admit that we may not know what’s going on in our own heads; however, I take it that such externalists admit that this is a cost of their view, albeit a cost happily borne given its theoretical payoffs, such as explaining reference success and failure in intuitive cases. If there were no such payoffs, such externalism would (and should!) have few friends.

53. See Arthur Lovejoy, “The Thirteen Pragmatisms I” (1908) 5:1 J Philosophy, Psychology and Scientific Methods 5 [Lovejoy, “The Thirteen Pragmatisms I”]; Arthur Lovejoy, “The Thirteen Pragmatisms II” (1908) 5:2 J Philosophy, Psychology and Scientific Methods 29.

54. Many attribute this to William James; see, e.g., Bertrand Russell, A History of Western Philosophy (Simon & Schuster, 1945). However, James attributed this to FCS Schiller: William James, “Pragmatism’s Conception of Truth” in Louis Menand, ed, Pragmatism: A Reader (Vintage, 1997) at 130. Meanwhile, Schiller denied the adage: see FCS Schiller, “Why Humanism?” in John R Shook & Hugh P MacDonald, eds, FCS Schiller on Pragmatism and Humanism: Selected Writings, 1891-1939 (Humanity Books, 2008) at 100; FCS Schiller, “The Humanist Theory of Truth”, ibid at 530. And funny enough, Hilary Putnam denies that James held the view: see Putnam, Hilary, Pragmatism: An Open Question (Blackwell, 1995) at 8-9Google Scholar.

55. Lovejoy, “The Thirteen Pragmatisms I”, supra note 53 at 6.

56. I follow Cohen in defining acceptance as the following: “to accept that p is to have or adopt a policy of deeming, positing, or postulating that p that is, of going along with that proposition (either for the long term or for immediate purposes only) as a premise in some or all contexts for one’s own and others’ proofs, argumentations, inferences, deliberations, etc.” Jonathan Cohen, “Belief and Acceptance” (1989) 98:391 Mind 367 at 368.

57. Blaise Pascal, Pascal’s Pensées, edited and translated by WF Trotter (EP Dutton, 1958).

58. See Murphy, Liam, “The Political Question of the Concept of Law” in Coleman, Jules, ed, Hart’s Postscript (Oxford University Press, 2001) 371Google Scholar; Liam Murphy, “Concepts of Law” (2005) 30:1 Australian J Leg Philosophy 1.

59. See Natalie Stoljar, “In Praise of Wishful Thinking: A Critique of Descriptive/Explanatory Theories of Law” (2012) 6 Problema: Anuario de Filosofía y Teoría del Derecho 51; Stoljar, Natalie, “What Do We Want Law to Be? Philosophical Analysis and the Concept of Law” in Waluchow, Wilfrid & Sciaraffa, Stefan, eds, Philosophical Foundations of the Nature of Law (Oxford University Press, 2013) 230CrossRefGoogle Scholar.

60. Bayón, Juan Carlos, “The Province of Jurisprudence Underdetermined” in Beltrán, Jordi Ferrer, Moreso, José Juan & Papayannis, Diego M, eds, Neutrality and Theory of Law (Springer, 2013) 1Google Scholar.

61. Hillary Nye, “Staying Busy While Doing Nothing? Dworkin’s Complicated Relationship with Pragmatism” (2016) 29:1 Can JL & Jur 71 at 90.

62. For the suggestion that Dworkin and Murphy (and by substitution, myself) have different views, see Julie Dickson, “Methodology in Jurisprudence” (2004) 10:3 Legal Theory 117.

63. Though, for the reasons cited in section 4.1, it might be best if the pragmatist agreed with the descriptivist about the content of the relevant claims.

64. Of course, that means that, technically speaking, expressivism and pragmatism are compatible. Presenting them as mutually exclusive options is, thus, somewhat misleading.