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Frederick Schauer : THE SOCIAL CONSTRUCTION OF THE CONCEPT OF LAW: A REPLY TO JULIE DICKSON(1) |
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THE SOCIAL CONSTRUCTION OF THE CONCEPT OF LAW: A REPLY TO JULIE DICKSON(1)
Abstract--In Evaluation and Legal Theory, Julie Dickson argues, against me and against Hart, that the beneficial moral consequences attaching to accepting one or another concept of law should have no place in deciding which concept of law is true. In response, I argue that a concept of law, as both Dickson and I acknowledge, is subject to change over time, and may vary across cultures. Yet once we recognize that the concept of law is contingent and variable, we can recognize that prescribing what the concept of law ought to be is no less plausible an enterprise than describing what our concept of law now is. And for the prescriptive enterprise, although plainly not for the descriptive one, the beneficial moral consequences flowing from accepting a particular concept of law are an unavoidable component of the task
In Evaluation and Legal Theory, [1] Julie Dickson pays me the compliment of taking my work seriously and discussing it at length. More particularly, she challenges my view that theories of law might appropriately be assessed on the basis of, inter alia, the moral consequences that would attach to their acceptance or rejection. Yet although Dickson's thoughtful and extensive engagement with my arguments is flattering, the challenge itself does not succeed. In this brief Reply I seek to repay Dickson's compliment by taking her criticism as seriously as she takes my position, but I will show why Dickson's demurrer to what she calls the 'beneficial moral consequences' view is unsuccessful, ultimately misunderstanding the multiplicity of voices in which legal theory may speak. By evaluating a prescriptive theory of the concept of law as if it were a descriptive one, Dickson winds up aiming at the wrong target, and in the final analysis her challenge fails for precisely this reason.
1. The 'Beneficial Moral Consequences' Argument Explained
The argument that Dickson accurately attributes to me is what she calls the 'Beneficial Moral Consequences Thesis'. [2] Because this thesis is at the centre of the controversy, it will be useful to recapitulate it in order that the grounds of dispute be specified precisely and understood correctly. And this recapitulation commences, as did my original argument, [3] with H.L.A. Hart's 1958 debate with Lon Fuller in the pages of the Harvard Law Review. [4] As is well-known, Fuller's argument for a natural law [5] understanding of the concept of law included, inter alia, the claim that such an understanding--an understanding that morality was a necessary condition for legality--would facilitate a state of affairs in which citizens and officials would refuse to obey morally iniquitous directives even when they emanated from ostensibly official authority. [6] For Fuller, legal positivism's failures lay in part in the way that a positivist understanding of the phenomenon of law, according to Fuller, facilitated obedience to all directives clothed in legal trappings, no matter how iniquitous, so long as the subject understood those directives to be legal ones.
Against Fuller, Hart insisted that the identification of a directive as law indicated nothing about the moral authority of that directive and thus nothing about whether that directive should be obeyed. [7] Consequently, claimed Hart, official and citizen disobedience to immoral directives would be facilitated not by pretending that such directives failed to qualify as legal just because of their perceived iniquity, but rather by internalizing the fundamental positivist insight that law and morality were conceptually distinct. Because of this conceptual distinction between law and morality, Hart argued, a directive's legality said nothing about its morality. When this core positivist tenet became widely accepted, he maintained, society would have most effectively created the environment in which resistance to evil directives was maximized.
When I first wrote the essay whose conclusions and methodology Dickson challenges, what interested me about the Hart-Fuller debate was not the obvious differences between the two theorists and their positions, but rather the largely unspoken premise that Hart and Fuller, at least in this debate, [8] shared. For although the two plainly disagreed over which concept of law--Hart's positivism or Fuller's version of natural law--would best facilitate disobedience to evil directives, they intriguingly agreed that the tendency of a concept of law to facilitate such an attitude should count in its favour. So although I concurred then and concur now with Hart on the merits of the positions in the debate itself, I was then and remain now especially interested in developing Hart and Fuller's shared premise that the 'beneficial moral consequences' of accepting this or that concept of law are relevant in determining which concept of law we should favour.
2. Why Law is Not Like Anchovies
Dickson's quarrel with me and others [9] is not about outcomes but about methodology. Legal positivism may be correct, she argues, but not because of the alleged beneficial moral consequences of accepting it. And even if the acceptance of legal positivism did in fact lead to beneficial moral consequences, such consequences would be irrelevant to the question whether the legal positivist characterization of the concept of law is true. That acceptance of a legal positivist understanding might also bring beneficial moral consequences is completely beside the point, says Dickson, and to suppose otherwise ignores the essentially and exclusively explanatory nature of the analytic jurisprudential enterprise. [10] Moreover, she argues, those of us who accept the Beneficial Moral Consequences Thesis have argued in the wrong direction, for the consequences that would ensue from the truth of, say, legal positivism, 'cannot [themselves] be used to provide argumentative support for its truth'. [11]
Dickson, in claiming that I have argued from conclusion to premise and from ought to is, accuses me of committing what we might call the anchovy fallacy. Like many others, I find anchovies distasteful. And because many otherwise perfectly fine culinary preparations become ineligible for me because they contain anchovies, I am clear that it would be a better world, at least for me and maybe on balance for the world's population, were there to be no anchovies at all. Yet although I think this would be a better world without anchovies, I accept that there are anchovies, and I am careful to avoid the fallacy of denying the actual existence of anchovies just because of my preference for their non-existence. But with the concept of law, Dickson argues, I am not so careful, and just as my normative preferences about anchovies should not influence my evaluation of their existence, so too should my (or the world's) normative preferences about theories of the concept of law, even if those normative preferences are sound, not figure in my evaluation of their truth or falsity. I err, she insists, in believing that the moral desirability of a legal theory, at least an explanatory theory of the concept of law, [12] is any more relevant to evaluating its truth than the culinary desirability of anchovies is to ascertaining their very existence.
Yet in charging me with committing the anchovy fallacy, Dickson ignores a critical difference between law and anchovies. For although anchovies are natural kinds, [13] law is a socially constructed institution. [14] And although many people believe that law has at least some important natural properties that makes it more similar to anchovies than I have acknowledged, neither Dickson nor I are among them. We are both legal positivists of some sort, and thus we believe that not only are particular laws and entire legal systems humanly created, but also that law, far from being natural, is itself a human and social construction. And, like Dickson, my belief in this has nothing to do with the beneficial moral consequences of holding such a belief. For both of us, law is not natural in any interesting way, and our belief in this proposition is solely a function of its actual truth and not the moral desirability of it being true.
Because both Dickson and I believe that law is a social construction and not a natural kind, we are both committed to believing it would be open for the people whose collective beliefs and actions construct (tautologically) that which is socially constructed--call it a 'society' or a 'culture'--to construct law in one way rather than another. And thus so too with a society's collective understanding of that which it has constructed, a collective understanding that some, including myself, would call a 'concept'. A society might, for example, create its understanding of law such that it understood law in an inextricably morally soaked way, with morality being a condition for legality in all possible legal systems in all possible worlds. [15] Alternatively, a society might construct and understand law (and also its concept of it) such that law was conceptually distinct from morality, with the concept of law, even if not the particular institutions of law and even if not particular legal systems, standing apart from the concept of morality. Still other alternatives may exist, but the point is only that as between Dickson and me it appears to be common ground that both law and the concept of law are socially constructed, and that different cultures might thus possess not only different legal institutions, but different concepts of law. And it follows from this that it is possible that a particular culture might have different concepts of law at different times.
Frederick Schauer: Frank Stanton Professor of the First Amendment, John F. Kennedy School of Government, Harvard University. I am grateful for the written comments of Brian Bix and Joseph Raz, and for useful discussion with Liam Murphy.
[1]. Julie Dickson, Evaluation and Legal Theory (Oxford: Hart Publishing, 2001).
[2]. Dickson, pp 84-102.
[3]. Frederick Schauer, 'Positivism as Pariah' in R.P. George (ed.), The Autonomy of Law: Essays in Legal Positivism (Oxford: Clarendon Press, 1996), 31-55. I make similar claims in Frederick Schauer, 'Positivism Through Thick and Thin' in Brian Bix (ed), Analyzing Law: New Essays in Legal Theory (Oxford: Clarendon Press, 1998), 65-78.
[4]. Lon L. Fuller 'Positivism and Fidelity to Law--A Reply to Professor Hart', 71 Harvard L Rev 630-72 (1958); H.L.A. Hart 'Positivism and the Separation of Law and Morals', 71 Harvard L Rev 593-629 (1958).
[5]. For the purposes at hand, the fact that Fuller's version of natural law was far more procedural than substantive is largely beside the point, as is the question whether Fuller's position should even be entitled to the 'natural law' label at all. All that is important here is that Fuller insisted that some form of morality properly figured in the identification of a directive as a law properly so called, a claim that Hart, at least in his 1958 article, took pains to resist.
[6]. I use 'understanding' here as roughly a synonym for 'conception,' and I take 'conception' to be the slightly more active form of 'concept'. Thus, a concept is created precisely because people or a culture understand or conceive of some part of the world in one way rather than another.
[7]. 'For everything that [Radbruch] says is really dependent upon an enormous overvaluation of the importance of the bare fact that a rule may be said to be a valid rule of law, as if this, once declared, was conclusive of the final moral question: "Ought this rule of law to be obeyed?" Surely, the truly liberal answer to any sinister use of the slogan "law is law" or of the distinction between law and morals is, "Very well, but that does not conclude the question. Law is not morality; do not let it supplant morality"'. Hart, 'Positivism and the Separation of Law and Morals', above n 4 at 618.
[8]. The feature of the debate that I engage here, and that I engaged in the original essay, is a feature that seems absent from any of Hart's subsequent work, including H.L.A.Hart, The Concept of Law (with Postscript edited by P.A. Bulloch & J. Raz) (Oxford: Clarendon Press, 2nd edn, 1994). Although Hartian exegesis is not my goal here, I emphasize that my claims about Hart's acceptance of the Beneficial Moral Consequences Thesis are limited to what is contained in the 1958 article, for there is no indication in any of his subsequent work that he either accepted or rejected the Thesis.
[9]. Dickson correctly identifies (p 87 n 9) as other culprits Stephen Guest, 'Two Strands in Hart's Theory of Law: A Comment on the Postscript to Hart's The Concept of Law' in Stephen Guest (ed.), Positivism Today (Aldershot: Dartmouth Publishing, 1996), 11-27; Neil MacCormick 'A Moralistic Case for A-Moralistic Law', 20 Valparaiso L Rev 1-41 (1985); and Liam Murphy, 'The Political Question of the Concept of Law' in Jules Coleman (ed.), Hart's Postscript: Essays on the Postscript to the Concept of Law (Oxford: Oxford University Press, 2001), 371-409. Somewhat more controversial is her inclusion within this group of Ronald Dworkin, 'A Reply by Ronald Dworkin' in Marshall Cohen (ed.), Ronald Dworkin and Contemporary Jurisprudence (Totowa, New Jersey: Rowman and Little-field, 1981), 247-300, but my goal here is not interpretation of Dworkin, so I will neither exclude him nor enlist him in my cause. Several other fellow travellers are noted in Liam Murphy, above at 373, n 6.
[10]. Although I address the issue only obliquely throughout this Reply, there is a question lurking about the utility of Dickson's understanding of analytic jurisprudence such that to qualify as analytic jurisprudence a theory or account must be neither prescriptive nor particular. Only general jurisprudence in the explanatory mode counts as analytic jurisprudence to Dickson, as she makes clear at pp 15-25, an understanding of the enterprise of analytic jurisprudence that excludes not only those who do jurisprudence prescriptively with an analytic approach, but those who disclaim general, as opposed to particular, jurisprudential ambitions, most notably Ronald Dworkin. Given Dworkin's overwhelming presence in modern jurisprudential debate, defining him out of the enterprise seems odd. One can disagree with Dworkin on virtually everything he has written for the past forty years (which I do not) while still, however, thinking that 'Is it jurisprudence without Dworkin?' is something like 'Is it chess without the queen?'.
[11]. Dickson, p 89.
[12]. I will at times refer to the concept of law, at times to our understanding of law, and at times to the idea of law. Although the relationship among these, and to the relationship of any of these to the meaning of the word 'law' is important, nothing of significance between me and Dickson turns on these interesting and contested questions. See Brian Bix 'Conceptual Questions and Jurisprudence', Legal Theory, vol 1 (1995) 465-80; Brian Leiter, 'Realism, Hard Positivism, and Conceptual Analysis', Legal Theory, vol 4 (1998) 533-47 at 535-37 and 544-47.
[13]. This is slightly tricky, for the excess saltiness and intense fishiness that produces the characteristic flavour of the anchovy is significantly a function of the method by which humans contingently cure and prepare them, rather than being related to what anchovies taste like when they are simply taken from the sea and grilled. But we can let this pass.
[14]. The claim that law is socially constructed is quite a modest one, and entails no commitment to more extravagant beliefs about the alleged social construction of much or all of the physical world. On all of this, little of which is relevant here, see John R. Searle, The Construction of Social Reality (New York: Free Press, 1995). And see also Frederick Schauer, 'Fuller on the Ontological Status of Law' in Willem J. Witteveen and Wibren van der Burg (eds), Rediscovering Fuller: Essays on Implicit Law and Institutional Design (Amsterdam: Amsterdam University Press, 1999), 124-42.
[15]. We might call this a 'soft' natural law position, where law was understood as necessarily moral, and where morality was understood as a necessary condition for morality, but where the foregoing was itself a matter of human choice and not anything pre-human or pre-social. In my view, this kind of soft natural law is the best characterization of Fuller's claim of affinity to the natural law tradition. See Schauer, 'Fuller on the Ontological Status of Law,' above n 14.
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