Dr. Triantafyllos Gkouvas (University of Antwerp)
LAW’S HUMILITY: THE POSSIBILITY OF
METAJURISPRUDENCE
INTRODUCTION
There is no royal way from semantics to ontology. Although in its generality this byword can be used as a term of censure against those of an anti- metaphysical sentiment my aspiration is specifically geared to showing that law could be a fitting instance of this truism.1 Some would say that I am already assuming too much. There is no denial that language is law’s primary vehicle of materialization. Therefore, the semantic ‘royalist’ can argue, we shouldn’t so readily dismiss the thought that language seems to point the way to law’s reality. To what extent can the meaning of legal
1 Karen Bennett provides a systemic overview of suspicious treatments of lofty metaphysics. She suggests that there are at least three varieties of anti-metaphysical theorizing: epistemicism, semanticism, and anti-realism. The epistemicist will concede that metaphysical verdicts can be informative but will abstain from privileging any viewpoint over another. The semanticist will treat core instances of metaphysical discourse as merely verbal disputes centered on questions of description rather than existence. The most radical of all three variants is the anti-realist who will deny tout court any robust sense of truth-aptness for metaphysical discourse. See Karen Bennett, ‘Composition, Colocation, and Metaontology’ in David Chalmers, David Manley, and Ryan Wasserman (eds.), Metametaphysics: New Essays on the Foundations of Ontology, Oxford University Press, 2009,pp. 38-76, see especially pp. 39-42.
1 statements diverge from what their truthmakers are? At the same time there is a long tradition of suspicion that law is not the kind of thing that can be distinctly normative in any robust sense. In the best case, a debunker would retort, the fact that an action is legally required is verdictive2 in the sense that it merely reports a conclusion as to what ought to be done without being in itself a further reason in favor of that action. In the worst case the same pessimist would lament that the normativity of legal requirements only piggybacks on moral reasons or values but that there cannot exist a distinct source of legal reasons.
One can adduce numerous platitudes in support of both semantic royalism and normative pessimism. If there is anything self-evident about law it is the fact that jurisprudential claims about what grounds legal facts always take on board predications of legal content. One need only accept the further premise that legal predications have propositional rather than expressivist content and there naturally emerges the metaphysical question of what accounts for the truth of legal propositions. Moreover, it is the same propositional content expressed by legal claims that seems to condition its binding effect on further extra-legal conditions: social acceptance, validation by external standards or a logical-pragmatic presupposition of bindingness.
2 To the best of my knowledge, Christopher Essert develops the most detailed account so far in this line of criticism; see his ‘Legal Obligation and Reasons’ in Legal Theory (2013) 19(1): 63-88.
2 Behind the metaphysical centrality of predications of legal content lies an unarticulated but pervasive semanticist bias, namely that we can somehow draw conclusions about the structure of reality from the logical regimentation of its linguistic representation. What I intend to convey by using the term metaphysical centrality is the misguided—as I intend to argue—assumption that the correspondence of legal truth to reality consists in its correspondence to legal facts. If a legal philosopher wants to commit to more substantive metaphysical arguments about law then she should ask what kind of non-legal facts ground legal facts. What remains available for lofty theorizing can be either an exercise in descriptive sociology or modest conceptual analysis. There is no further question, the story goes, to be asked about the ontology of law that does not amount to espousing an immodest approach to metaphysics at least from the perspective of general jurisprudence.
The same story seems to have a counterpart in the discussion about the relation of law to practical normativity. Again the origin of my objection is metatheoretical as the problem that I see arising stems from what I believe to be a metanormative bias in favor of measuring the eligibility of something as normatively compelling by testing it for reason-giving capacity. Whereas I do not intend to question the close connection between practical normativity and reasons-guidance3, I do intend to scrutinize its genericity and more specifically whether and how legal facts, if they exist,
3 I intend to use this term as comprising both the action-guiding and the attitude-guiding aspect of practical normativity.
3 can be normatively relevant by means of being reason-giving. My suspicion is that at least part of what explains the association of legal normativity with reason-giving is the intuitive pull of a currently pervasive metanormative view of practical normativity. According to this view X is a reason for an agent O to perform an action or adopt an attitude A such that
X can also serve as an explanation of those behavioral responses of O that exemplify A.
The aim of this thesis is to demonstrate that to their detriment our local jurisprudential disagreements are oblivious to the formative impact of their unpronounced metaontological and metanormative commitments. What motivates my characterization of this oblivious stance as detrimental is my concern that the dominant parlance in which we frame our disagreement about the grounds of law makes it too parochial or even too cryptic to be charitably understood by “non-legal”, so to speak, philosophers working in general metaphysics and metaethics. To see why the potential fault lies more on our side and less on theirs one need only observe the frequency at which we blame ourselves for talking past each other when we argue about the scope and plausibility of a normative versus descriptive jurisprudence.
This is not the place to review the voluminous secondary literature spawned by Chapter I of Ronald Dworkin’s Law’s Empire. Nevertheless, one particular point remains relevant, namely, that this event remains an unsurpassed peak in our disagreement about the nature of law precisely because it illustrated how close towards existential denial legal philosophy
4 has marched. The self-denying argument that this famous chapter brought up is the idea that the scope of meaningful disagreement among competent legal practitioners and theorists meets its farthest radius at the intersection of empirical and theoretical disputes. That being said, a proper vindication of the possibility of theoretical disagreement about the grounds of law remains a desideratum as some legal philosophers voice sonorous objections against either the centrality or the very possibility of theoretical disagreement about the grounds of law.
For the sake of my argument, I will single out two instances of the type of objection I just described as particularly poignant. The first has been forcefully articulated by Brian Leiter and purports to disprove the pervasiveness of theoretical disagreement about the grounds of law on empirical grounds.4 On Leiter’s account what is theoretically informative is the existence of massive agreement about law in the sense that the existence of the latter points the way to exploring positivism’s unpronounced explanatory virtues. His line of attack bifurcates into mutually supportive theses. According to the Disingenuity Thesis, disputants about the grounds of law are consciously or unconsciously driven by the urge to mold the law to what they believe to be an ideal version of legality. According to the Error Thesis, parties to the purported disagreement about the grounds of law are literally mistaken precisely because what makes the matter about the grounds of law a non-issue just is
4 Brian Leiter, ‘Explaining Theoretical Disagreement’ in University of Chicago Law Review (2009) 76: 1215-50.
5 the fact that there is no convergent practice among legal officials with regard to what is valid law in this particular case. The second objection is rather recent and draws its impetus from the impressive progress in philosophy of language in what regards the modelling of our semantic and pragmatic disagreements. Philosophers like David Plunkett and Timothy
Sundell argue that what in surface looks like an instance of theoretical disagreement about the grounds of law is more likely to be explained as an instance of metalinguistic disagreement.5 On their view, disagreement about whether legal content is determined solely by social facts or also by normative facts can be regimented as an instance of what they describe as metalinguistic negotiation revolving around the normative issue of which of a range of competing concepts of law should be used in a given conversational circumstance.
As already evidenced by my way of framing the dispute, I purport to argue that this extremely narrow conception of the ambit of our disagreement about law is perhaps the closest we could ever get to rendering our debate about the nature of law as parochial and unintelligible to a larger philosophical audience as ever. That being said, the idea that jurisprudential disagreement is at its core an instance of theoretical disagreement has yet to earn its pride of place despite promising evidence that almost thirty years after the onset of this controversy prominent recent contributions—positivist and antipositivist alike—to legal philosophy appear
5 David Plunkett and Timothy Sundell, ‘Dworkin’s Interpetivism and the Pragmatics of Legal Disputes’ in Legal Theory (2013) 19: 242–81.
6 to be unhooked from the task of (dis)proving the possibility of theoretical disagreement in law, and are more perspicuously oriented to offering victorious arguments against a commonly acknowledged background of meaningful theoretical disagreement. Even though I will try to convey my optimism that the acknowledgment of the possibility of theoretical disagreement about law tends to acquire the shell of a mainstream view, I caution against thinking that this is a certain victory precisely because this trend has only come to ascendancy lately, and is still widely challenged.
Keeping this caveat in mind this thesis aspires to make good of the finite ambition to scale a particular peak in the hope that it can lend additional support to the reality of theoretical disagreement about law by expanding its scope to what I will dare to term metajurisprudential questions.
The line of defense I intend to adopt will not focus on addressing head on the critiques advanced against Dworkin’s initial argument from theoretical disagreement but, perhaps surprisingly, on developing a critique of
Dworkin’s chosen route to defending the prominence of theoretical disagreement about law. As it stands, Dworkin’s deployment of the argument from theoretical disagreement is aimed at debunking legal positivism rather than re-inviting legal positivists to deploy their own arguments after having reshuffled the vocabulary of their dispute with legal antipositivists. The idea behind this unorthodox effort to take sides in this debate is that Dworkin’s way of presenting jurisprudential disagreement as an instance of first-order normative disagreement is precisely what makes
7 the whole project of theoretical disagreement vulnerable to multilateral criticism. More precisely, I purport to argue that by restrictively associating theoretical disagreement with the question of what grounds legal facts instead of what grounds the truthmakers of legal propositions we already assume too much about the relation between the semantics and the metaphysics of our local discourse.
By proceeding as if legal facts are the trivial truthmakers of legal propositions we also grant that the concept of law, whatever that is, is an instructive guide to our ontological commitments. By putting the “semantic cart” before the “ontological horse”, if I may use this metaphor, we, first and foremost, condition the subject matter and scope of the ensuing metaphysical disagreement on our verdicts regarding the truth-conditional form of assertions of legal content. If this is how the route to disagreement about the grounds of law is paved, then it should come as no surprise that arguments targeted against the possibility of theoretical disagreement are semantic rather than metaphysical in nature. This confusion among varieties of disagreement has been compounded rather than dispelled by the fact that Dworkin set out to defend the possibility of theoretical disagreement about the grounds of law by arguing that law is an interpretive concept.6 Before explaining why Dworkin’s way of defending the centrality of theoretical disagreement about law it is useful to briefly recount his argumentative route from law’s being an interpretive concept to
6 Note that Dworkin’s claim that law is an interpretive concept should be distinguished from the particular interpretive theory he offers, which he labels ‘law as integrity’.
8 making theoretical disagreement about the grounds of law intelligible and ultimately to identifying this disagreement as a type of normative political disagreement about the responsibilities of government.
Dworkin does not begin by drawing law’s essential profile but by attributing to legal practice the essential property of being argumentative.
He, thus, claims that ‘[e]very actor in the practice understands that what it permits or requires depends on the truth of certain propositions that are given sense only by and within the practice; the practice consists in large part in deploying and arguing about these propositions’.7 He then makes a first step to regiment the structure of this argumentative practice by drawing a distinction between what he calls ‘propositions of law’ and the
‘grounds of law’. The former are statements about what the law requires, permits, prohibits or empowers one to do, whereas the latter, he argues, are the determinants of the truth or falsity of those propositions. Provided that the most prominent occasion on which legal practitioners argue about propositions of law and their grounds is that of disagreement, making sense of the latter acquires special importance.
Equipped with this first distinction, he proceeds to distinguish between two ways in which legal practitioners may disagree about the determinants of the truth of propositions of law. The first type of disagreement which he identifies as a kind of empirical disagreement is not about the grounds of law but about whether those grounds obtain in a particular case. The
7 Ronald Dworkin, Law’s Empire, Cambridge, MA: Belknap Press, 1986, p. 13.
9 second type of disagreement which he calls theoretical is the most interesting one as it directly regards the grounds of legal truths. The rest of the story is too familiar to be rehearsed in exegetical detail here. Dworkin’s conclusion is that theoretical disagreement is a real phenomenon and that available theories of law fall short of accounting for the pervasiveness of this type of disagreement. His solution is to suggest that law itself is an interpretive concept that already encodes in its conditions of application the possibility of disagreement about when it is applicable.
The preceding narration gives me the opportunity to make a couple of critical remarks. Firstly, given Dworkin’s own distinction between the grounds of law and propositions of law it seems that he regards the notion of legal truthmakers as an unnecessary complication. On his account, legal facts are, on pain of banality, the truthmakers of propositions of law and what is available for scrutiny are the grounds of legal facts. Secondly, he projects the reality of a metaphysical type of disagreement (about the grounding of legal facts) onto the application conditions of the concept of law. More precisely, he suggests that what could be a promising start in making sense of theoretical disagreement about law is to entertain the thought that it is the concept of law that is first and foremost argumentative or interpretive. As a result, a proper regimentation of legal talk
(propositions of law) and thought (concept of law) becomes the vehicle that will drive us to law’s contested reality (the grounds of law).
10 As I am about to argue further downstream, a preliminary step in defending the possibility of theoretical disagreement about law is to challenge the assumption that the spectrum of our disagreement about the grounds of law is adumbrated or even partly adjudicated by the way we disagree about the application conditions of the concept of law. On the picture under review the concept of law as well as other interpretive concepts (for instance, democracy) is such that it heralds the type of disagreement that we should anticipate when we argue about particular legal cases. It does so because the non-evaluative and embedded evaluative aspects of interpretive concepts underdetermine their extensions relative to a particular context.8 The rest of the argument that leads to the conclusion that the kind of theoretical disagreement at stake is normative disagreement is a typical instance of an inference to the best explanation.
The argumentative character of interpretive concepts is such that their non- evaluative and embedded evaluative constituents underdetermine their extensions. In other words, one can know what law means without knowing
8 In the legal case the salient context will be that of a particular legal system, institution or jurisdiction. I owe the argument from underdetermination to Daniel Elstein’s and Thomas Hurka’s ingenious defense of ‘thinning’ the shell of contested thick concepts like ‘distributively just’, ‘selfish’ and ‘courageous’. With respect to these concepts they remark that they lie ‘in a middle position between purely thin ones and fully thick ones such as ‘Kraut.’ In so doing it explains why anti-reductivists like McDowell have to assume that any reductive analysis of these concepts will have a descriptively determinate two-part form. It is only if the descriptive part of the analysis fully determines a concept’s extension that there is no room for evaluations to help do so. Given an only partly determinate descriptive part, however, that room is clearly available.’ (Daniel Elstein and Thomas Hurka, ‘From Thick to Thin: Two Moral Reduction Plans’ in Canadian Journal of Philosophy (2009) 39 (4): 515-36, at 524.
11 which features of a legal practice trigger the best total justification of that practice. Assuming that a concept’s criteria of application impose constraints on what any literal use of it stands for in a given context, what else could best explain what determines the extension of the concept than a general set of principles of political morality? On the emerging picture it turns out that theoretical disagreement about law is full-fledged normative disagreement because in disagreeing about the grounds of law we disagree about which principles of political morality justify the totality of legal practices.
This lengthy digression into Dworkin’s argumentative route from the argumentative nature of legal practice to the normative character of theoretical disagreement about the grounds of law is not meant as a preparative step preceding a reconstruction of Dworkin’s interpretivist theory. What it is meant to highlight is the slippery slope character of its course to sparking a misguiding and potentially damaging confrontation with deniers of theoretical disagreement. The crucial moment at which this unnecessary confrontation becomes inevitable is when Dworkin chooses to encode the archetypal scene of disagreement about the grounds of law into the concept of law. We are already familiar with the two sides of this dispute: positivists claim that legal practices determine their own relevance9 with regard to the determination of legal content whereas
9 Or at least without the mediation of normative arguments. By the end of Chapter 4 (pp. 270-5) I will explore the possibility of unpacking Scott Shapiro’s argument about the inner logic of planning as an instance of conceptual mediation between descriptive facts about the actions of legal institutions and facts about legal content.
12 antipositivists claim that normative arguments are necessary for making this determination intelligible or possible. Dworkin tries to conceptualize this controversy by treating law as a moderately thick concept featuring legal practices as its non-evaluative component and their justification as its evaluative component. Inevitably, however, thick normative concepts are such that that they allow evaluation to determine their extension by locating the relevant disagreement in the question of what the right-making features of legal practices in fact are.
The result is that those who are suspicious of the pervasiveness of theoretical disagreement about law have a legitimate reason to complain that Dworkin tries to steer the debate to his antipositvist way of making sense of this type of disagreement by taking things for granted. Both the empirical and metalinguistic objectors are reasonably alarmed by the fact that for Dworkin the strongest evidence for the ubiquity of theoretical disagreement about the grounds of law lies not in the world but in our thought. That is to say, instead of documenting the possibility of theoretical disagreement by locating it at a level where the controversy between legal positivists and antipositivists is not yet fully articulated and thus more malleable10, Dworkin tries to preempt the discussion by positing that the reality of legal facts and in part the reality of their grounds are already mirrored in the way we think about law in its most focal manifestations.
10 For instance, a way to begin one’s argument in favour of the possibility of theoretical disagreement would be to remark it is an open question whether legal philosophers should be ontologically committed to the obtaining of legal facts.
13 Besides the fact that this is a tacit metaontological position that remains un- argued in Dworkin’s work, his view remains vulnerable to competing thoughts or conceptualizations of law precisely because it is grounded in what he takes to be an explanatorily privileged conception of law.11
Despite my critical remarks on why Dworkin’s way of defending the possibility of theoretical disagreement potentially serves as a weapon in the hands of his opponents, I do not believe that their criticisms are fatal nor do
I think that the vulnerability of theoretical disagreement thus construed poses a serious objection to Dworkin’s own interpretivist theory of law.
What I do believe instead is that some amends must be made and that this task would be viciously circular if it was directly aimed at discrediting
Dworkin’s opponents on that matter. After all, their arguments have so far served more as a targeted response to Dworkin’s own argumentative strategy rather than as an independent and full-fledged attempt to categorically reject once and for all the possibility of theoretical disagreement about the grounds of law. As previously noted, my way of bringing the argument from theoretical disagreement back on track is to
11 In this regard, Dworkin invites us to ‘recognize that we share some of our concepts, including the political concepts, in a different way: they function for us as interpretive concepts. We share them because we share social practices and experiences in which these concepts figure. We take the concepts to describe values, but we disagree, sometimes to a marked degree, about what these values are and how they should be expressed. We disagree because we interpret the practices we share rather differently: we hold somewhat different theories about which values best justify what we accept as central or paradigm features of that practice. That structure makes our conceptual disagreements about liberty, equality, and the rest genuine.’ (Ronald Dworkin, Justice for Hedgehogs, Cambridge, MA: Harvard University Press, 2011, p. 6).
14 begin by questioning the way its subject matter has been configured thanks to Dworkin’s seminal introduction of the idea. This critical appraisal will deliver a reconfiguration of what I will call the ‘site’ of theoretical disagreement in a way that it allows the expansion of its scope at a level where the traditional dispute between legal positivists and antipositivists has not yet arisen. The resulting picture will endow theoretical disagreement with a more fine-grained structure gradually descending from a domain of what I will call metajurisprudential questions to more familiar, substantive questions pertaining to the grounding of facts about legal content.
An immediate advantage of this reconfiguration will be a less committing semantics for legal propositions. In the spirit of keeping the “semantic cart” behind the “ontological horse”, I shall argue that it is not only possible but strongly recommendable to refrain from packing into the meaning of legality, in whichever semantic form it figures in assertions of legal content, substantive information about the relevance of descriptive or normative facts as well as their relation. In this vein I believe that it is possible to withhold the emergence of these aspects until the time becomes ripe to ask what grounds the truthmakers of legal propositions. This will, at least, slow down the pace of those who will remain unconvinced about the prospect of theoretical disagreement until the conclusion of my argument. By elevating the apex of theoretical disagreement to a higher level of abstraction its possibility can be welcomed without the qualms inevitably associated with
15 premature attempts to narrow the scope of the dispute between positivist and antipositivist philosophers.
The project animating this argument for the possibility of metajurisprudence is fuelled by its analogical affinity with metaethics and, ideally, it aims to emulate the formative impact of the latter on our understanding of moral thought, talk and practice. Given that both law and ethics share membership of the domain of practical philosophy, it is at least conceivable to submit that the domain of metajurisprudence can be subject to similar subdivisions with the ones pertaining to the structure of metaethical discourse. Consequently, metajurisprudential questions could in principle follow the pattern of division applied to metaethics such that one can plausibly declare a theoretical interest in understanding the metaphysical, epistemological, semantic and psychological/normative presuppositions of legal thought, talk and practice. The bulk of this exposition will be dedicated to exploring the metaphysical and normative commitments of jurisprudence. In this vein, I will treat some questions about the semantics of legal discourse as auxiliary to the elucidation of the controversy surrounding the relation between language and ontology.12
12 In the entire course of this exposition there will be only one substantive digression into the semantic aspects of legal discourse but instead of focusing on the question of what fixes the truth value of legal statements—that is to say, their truth-conditions—I will deal with the question of whether ‘legality’ has a standard truth value across its various syntactic manifestations—adverbial (legally), adjectival (legal, illegal) or nominal (law). In this vein, I will stand for the view that syntactic variations expressing the same legal content can admit of a common logical regimentation that invariantly assigns a specific kind of truth value to instances of legality. This digression will not extend, as I already
16 To forestall a forthcoming objection there is no doubt that the value of metatheoretical arguments in law has been incrementally recognized by many scholars espousing radically different visions about how legal philosophy should proceed. Denying this reality would be an injustice to the remarkable progress owed to the masterful sophistication of jurisprudential prose and the painstaking refinement of our concepts as we straddled away from the eliminativist contours of imperative or sanction-based theories of law that marked the early stages of what we now identify as analytic jurisprudence. What I do plan to take issue with is the methodological status which metatheoretical arguments are accorded in the adjudication of theoretical disputes about law, or as Dworkin further specifies it, in settling our disagreement ‘about the grounds of law, about which other kinds of propositions, when true, make a particular proposition of law true’.13
The idea that I hope to make salient throughout this exposition is that the restrictive way in which the object of theoretical disagreement about law has been identified is the result of the peripheral or ad hoc role assigned to questions pertaining to the foundations of analytic jurisprudence vis-à-vis the questions associated with the foundations or grounds of law. Differently put, it is potentially misleading for all participants to this debate to infer from its label that the ambit of theoretical disagreement about law cannot incur an expansion similar to the one brought to moral philosophy by the pointed, to how this truth value is supposed to be fixed. The latter question requires a further digression into whether and how legal statements are sensitive to the obtaining of a normative standpoint of some sort. 13 R. Dworkin, Law’s Empire, supra note 7, p. 5.
17 introduction of metaethics. On the alternative picture with which I intend to take issue theoretical disagreement about law is akin to the type of disagreement witnessed between proponents of deontological ethical theories and virtue-ethicists or consequentialists. Keeping analogies, the dispute between proponents of legal positivism and legal antipositivism cannot ascend beyond the level at which our disagreement as to whether rightness is about the maximization of utility or the realization of autonomous agency is being staged. The ‘meta’ prefix purports to point towards the existence of a higher level of abstraction wherein we are licensed to ask not just whether legal positivism is a better theory of law than antipositivism or vice versa but also whether and what justifies our ontological commitment to the thing called law. If this turns out to be a valid criticism, it could point the path toward reshuffling the terms of jurisprudential discourse in a way that also reconfigures the points at which the traditional participants actually diverge.
It is not a coincidence, I tend to believe, that the ambit of theoretical disagreement about law has remained so far vulnerable to Dworkin’s potent argument in favor of equating the foundations of jurisprudence with the foundations—or, more accurately, the grounds—of legal facts. The latter aspect of jurisprudential inquiry pertains to the kind of non-legal facts— descriptive, conceptual, normative—that ground legal facts as well as to the justification of the explanatory relevance of these non-legal facts vis-à-vis the grounding of legal facts. There is no denial that the long-term impact of
18 Dworkin’s argument from theoretical disagreement has been an invaluable
—though still faintly celebrated—leap towards bringing legal philosophy closer to its identity qua philosophy and farther from its reduction to legal theory. Nonetheless, as I am about to argue, what remains problematic is the reluctant if not sluggish way in which the literature on theoretical disagreement about law is willing not just to affirm but to defend the relevance of metatheoretical arguments for law.
Along with the incremental acknowledgment of Dworkin’s insistence in praising theory there has been a parallel concern about the level of critical evaluation at which our theoretical disagreement about law should be staged. Whereas I do believe that Dworkin’s argument in favor of welcoming theoretical disagreement in law has been victorious, I remain humbly reluctant to concur that the terms in which he purported to delineate the scope of this disagreement are correct. More precisely, I believe that his insistence on skipping levels of abstraction between the
“methodologically proper” internal judgments about the point of legal practice and the “methodologically erred” external judgments about what identifies a legal practice as such has had a weakening effect on the strength of his opponents’ defensive responses. To venture a possible interpretation, the allure of Dworkin’s way of deflating the purpose of metatheoretical routes for illuminating the nature of law owes much of its potency to an un-argued assumption that the site of theoretical disagreement about law also determines it scope. But the latter claim is not
19 a platitude nor a first-order evaluative claim but a full-fledged metatheoretical claim, or so I shall argue.
Before fleshing out my objection let me, first off, unpack the way in which
I intend to apply this inherited distinction between the site and scope of theoretical disagreement about law. The former term should be understood as referring to the way in which we demarcate the locus of our disagreement about law. Being aware of the alluring comfort of hiding behind lofty words, I will immediately proceed to offer an example of what could qualify as the site of theoretical disagreement about law. Given the standard definition dating back to Dworkin’s own initial proposal the site of theoretical disagreement about law would turn out to be identical with the problem of the grounds of legal facts, that is, the question of what kind of non-legal facts are the proper grounds of legal facts. On this restrictive, as I purport to argue, understanding of the site of theoretical disagreement the reality of legal facts is taken for granted and what remains available for discovery is the nature of non-legal facts that operate as the grounds of legal facts.
By sharp contrast, the extension of the term ‘scope’ purports to cover the range of questions that can be meaningfully asked about law. On the available restrictive understanding of the site of theoretical disagreement it would be accurate enough to say that the scope of legal disagreement would be analogically co-extensive with the scope of disagreement in normative ethics. This is not to say that legal disagreement just is a variety
20 of normative disagreement even though this is precisely how Dworkin purports to understand theoretical disagreement about law. Recall that this restrictive understanding of theoretical disagreement is meant to be equally available for the legal positivist. As a result, there should also be a positivist reading of the same story available such that theoretical disagreement about law can turn out to be a kind of descriptive disagreement about where to draw the boundary between what the law is and what the law should be. What remains critical is that on either reading theoretical disagreement is about law and not about the foundations of law much in the same way that theoretical disagreement in normative ethics is about, say, what constitutively defines the right and the good and not about their metaphysical and semantic properties.
As it stands, Dworkin’s dismissal of the utility of distinguishing the foundations of jurisprudence from the grounds of legal facts retains a strong argumentative background.14 Its strength resides in the idea that because the grounds of legal facts are the primary site of theoretical disagreement about law, our disagreement can remain intelligible only insofar as we limit its scope to the range of questions for which law as a concept and a practice is a proper target.15 To see how this idea purports to
14 I deliberately avoid the qualification of first-order theoretical disagreement about law as normative or descriptive precisely because I believe that Dworkin’s argument against the possibility of metajurisprudence remains equally strong regardless of whether he also achieves to demonstrate that our first-order disputes about law are normative all the way down. 15 By necessitation I do not intend to convey the idea that any eligible type of ground for legal facts must be capable of conceptually entailing a particular type of question to which
21 deflate the value of metatheoretical arguments in law I will provide two alternative templates of theoretical disagreement about law, one normative and one descriptive, which nevertheless share their identity as first-order theoretical disputes. First, I will try to exemplify Dworkin’s own understanding of theoretical disagreement about law as a type of first-order normative disagreement. On this approach legal philosophy moves a step closer to occupying a position within the broader domain of political philosophy that deals specifically with the normative relevance of historical facts about the activities of government officials for the determination of the rights and obligations of members of a political community. Second, I will venture to exemplify the same conception of theoretical disagreement as a type of first-order descriptive disagreement. On this alternative approach, when legal philosophers disagree about whether moral facts jointly with social facts ground legal facts they disagree about what makes de dicto or perspectival normative statements about law true.
According to Dworkin’s own interpretivist theory legal facts are grounded in interpretive facts about what best justifies the coercive impact of past political practice. By sharp contrast, according to Joseph Raz’s famous “sources thesis” legal facts are grounded in facts about the existence of authoritative directives that communicate the legal officials’ views on how those subject to their authority are to behave. Given this contrastive depiction we could ask which types of question are amenable to it counts as a plausible answer. For Dworkin to ask what type of questions can be answered by recourse to the grounds of legal facts is itself a substantive, normative question.
22 the invocation of interpretive facts or facts about the existence of authoritative directives as the grounds of legal facts. Assuming, again, that the scope of disagreement is determined by its site it makes sense to respond that to posit facts about how an authority believes its subjects should behave or facts about how state coercion is limited by reference to past political practice just is to answer the question of what the proper responsibilities of government vis-à-vis its citizens are.16 On the one hand the pronouncement of authoritative directives as the proper grounds of legal facts is or entails the endorsement of an instrumental value of legal authority in helping its subjects comply with antecedent—or law- independent—reasons by way of replacing them with its say so. On the other hand to seek out those aspects of the practices of legal officials that
‘depend on a single and comprehensive vision of justice’17 amounts more or less to upholding the value of equally distributing the burdens and benefits of political arrangements backed up with coercive force, or in Dworkin’s own terminology, the value of integrity.
The alternative construal of theoretical disagreement as a kind of descriptive first-order discourse provides, as expected, the only format that can accommodate the legal positivist’s terms for participating in this
16 That is to say, any theory of grounds for legal facts operates as an answer to the question of what the political relevance of legal facts is. On this normative construal of theoretical disagreement to ask for the non-legal grounds of legal facts is to ask about the normative grounds that make political history relevant for the determination of obligations and rights in a given political community. 17 Ronald Dworkin, Law’s Empire, supra note 7, p. 134.
23 discourse. To unpack this idea a bit further, take the assertion that from the legal point of view of S A ought to φ and suppose that in the actual legal system S the legal point of view of its officials just is the point of view of rule-consequentialism. Is it then a valid step to infer from the assertion that from the legal point of view of S A ought to φ that the point of view of rule- consequentialism requires of A to φ in S’s jurisdiction? If the answer is affirmative assertions of legal obligation are true de re as they directly allow a privileged set of standards to operate as a source of normative requirements for law-subjects. But if the answer is negative, as most legal positivists would expect, the same assertion will be true de dicto as its truth does not entail the truth of a proposition directly featuring a concrete normative theory.
Consequently, theoretical disagreement about de dicto normative truths about legal content could most probably revolve around what is entailed by a proper description of the legal point of view of a given system. It thereby follows that on a positivist understanding theoretical disagreement could mean at least two things: disagreement about what makes a description of the legal point of view proper and disagreement about what is entailed by a proper description. What theoretical disagreement on this view is not about is the truth of what the legal point of view properly described refers to. For instance a relevant and rather popular description would take the legal point of view to be the point of view of a legal authority. This is the normative viewpoint of legal officials who claim to possess legitimate
24 authority. If our theoretical disagreement about whether this description is correct is settled, a further theoretical disagreement may erupt with regard to what qualifies as the object of an authoritative intention.18 Alternatively, on Shapiro’s planning theory of law the correct description of the legal point of view is taken to be the normative point of view of a legal system’s master plan such that theoretical disagreement about law boils down to disagreement about what purposes those assigned with the design and revision of the master plan have as well as about which interpretive methodology best fits with those purposes.19
Returning back to my critical appraisal of Dworkin’s praise of theory in law20 I will proceed to state my objection—which actually animates and informs the entire exposition. My opposition to this restrictive
18 Raz seems to allow for some limited theoretical disagreement about law when he remarks that facts about the nature of law are relevant for determining which interpretative theory is correct. Tellingly, he notes that his Authoritative Intention Thesis ‘turns on our understanding of the notion of authority and its conceivable justifications’ (J. Raz, ‘Intention in Interpretation’ in Robert P. George (ed.), The Autonomy of Law: Essays on Legal Positivism, Oxford: Oxford University Press, 1999, pp. 249-86, p. 259). 19 Shapiro’s move towards making room for descriptive theoretical disagreement about law is licensed by his core idea that legal practice is not conventional in any robust sense. He notes that ‘[at] first glance, conventionalism appears to be a positivistic conception of law, for both privilege social facts in the determination of legal content…It is crucial to see, however, that conventionalism is not a positivistic theory at all. For while both theories privilege social facts, only positivism does so at the ultimate level. According to the legal positivist, the grounds of law are ultimately determined by social facts. By contrast, conventionalism privileges conventions at the nonultimate level: conventions determine the content of the law only by virtue of the fact that morality requires that they do so. Conventionalists, in other words, are natural lawyers who believe that political morality requires them to act as though they were exclusive legal positivists’ (S. Shapiro, Legality, Cambridge MA: Harvard University Press, 2011, p. 297).
25 understanding of legal disagreement derives its strength from the plausibility of engaging in theoretical disagreement about law by asking metatheoretical, or more concisely, metajurisprudential questions. As soon as we grant that it makes sense to enlarge the scope of legal disagreement beyond empirical and into theoretical territories I am inclined to believe that the scope of questions about law should be wide enough to include foundational questions about—for instance—whether legal truth requires the existence of legal facts or whether law can be normative in virtue of its being reason-giving. The expansion I am envisaging aims to leave intact the lower level array of questions—in both their normative or descriptive version—even though it becomes an open question whether and how the description of the object of our first-order theoretical disagreement about law can be affected by acknowledging a higher level of metajurisprudential, so to speak, discourse.
That being said, the possibility of metajurisprudential disagreement is heavily premised on how we are to understand the relation between the site of jurisprudential or first-order disagreement and its scope. What has been blocking the emergence of a higher level of abstract theorizing about law is the fact that the ‘scope determined by site’ thesis is silently treated by
Dworkin as a kind of normative truth in the sense that somehow the site of our disagreement is supposed to determine its scope. But it is not, or so I
20 See his seminal ‘In Praise of Theory’ in Arizona State Law Journal (1997) 29: 353-76 (revised and reprinted as Chapter Two in Justice in Robes, Cambridge MA: Belknap Press, 2006, p. 49-74).
26 shall argue. The only case in which the site of an idea necessarily determines its scope is when the site itself is an existence condition for the idea.21 But settling controversies over the existence conditions of Xs is not the type of mental exercise one would identify as internal to the practice of proceeding as if Xs existed. In other words, only arguments external to the practice of proceeding as if Xs existed can qualify as favoring or disfavoring the existence of Xs. The upshot is that in order to show that scope of legal disagreement is limited to first-order questions about the political relevance of legal facts it should also be demonstrated that the site of disagreement about law cannot be meaningful if there are no grounds for legal facts.
At this point it would make sense to ask whether the existence of legal facts is indeed an existence condition for the very possibility of theoretical disagreement. If it is, then Dworkin keeps a trump in his sleeve that allows him to insist in his claim that theoretical disagreement about law is a first- order normative disagreement. If it is not, it will remain an open question whether the scope of legal disagreement needs to be limited to first-order—
21 I owe this line of reasoning to Arash Abizadeh’s ‘site/scope thesis’ (see his ‘Cooperation, Pervasive Impact, and Coercion: On the Scope (not Site) of Distributive Justice’ in Philosophy & Public Affairs (2007) 35 (4): 318–358). He develops a critical account of the idea that justice requires a basic structure as its site which in its turn directly determines its scope and remarks that the meaning of ‘requires’ is ambiguous between an existential, constitutive and instrumental reading. Among them only the first meaning implies a limitation of the scope of justice by its site. On the existential interpretation of ‘requires’ justice ‘presupposes the existence of a basic structure before its demands arise’ and consequently ‘[it] limits the scope of justice to where a basic structure already exists’ (p. 324).
27 normative or descriptive—questions about the nature of law. But could it be the case that the site of theoretical disagreement about law is not the grounding of legal facts? Or, equivalently, would our first-order legal disagreement remain meaningful if there were no legal facts? And if so, would the scope of our disagreement be more permissive vis-à-vis the use of metatheoretical arguments? My response is affirmative if there is room for arguing that legal facts need not be the only plausible truthmakers of legal propositions much in the same sense in which it is not a priori true—as evidenced by the contemporary debate in metaontology22—that facts featuring a distinct ontological category of artifactual or ordinary objects like statues or chairs are the truthmakers of claims about the existence of statues or chairs.
This is precisely the moment that I identify as crucial for allowing metatheoretical questions to extend the scope of legal disagreement. If we could allow for the sake of the argument that the site of theoretical
22 In the first part of the thesis I will provide a more detailed map of the division of opinion between philosophers of a ‘Quinean’ and an ‘Armstrongian’ orientation with regard to the question of what determines a theory’s ontological commitments. For the moment, it suffices to remark that on W.V.O. Quine’s quantificational conception of ontological methodology, a theory’s ontological commitments are the entities that serve as the semantic values of the quantified variables that a proper logical regimentation of natural language is supposed to deliver. On the other side of the spectrum, lies the truthmaker approach originally propounded by David Armstrong according to which a theory’s ontological commitments are the entities needed to make the propositions of that theory true. Drawing on the latter tradition of thought philosophers like Ross Cameron, Heather Dyke and John Heil have been arguing for the possibility of preserving the veridicality of propositions featuring ontologically spurious entities like statues or chairs without deriving their respective truthmakers from what figures in their truth conditions.
28 disagreement about law is not the grounding of legal facts but the grounding of the truthmakers of legal propositions, the scope of our theoretical disagreement about law glibly incorporates two metajurisprudential questions, namely, whether legal facts are ontologically fit to make legal propositions true and whether legal facts are normatively fit to explain the way in which legal content can assume the role of a guiding premise in our practical reasoning.23 At this level of abstraction that
Dworkin’s “anti-Archimedean” strategy seems to ignore I have chosen to single out two interrelated metajurisprudential puzzles.24 The first one is about the relation of legal truth to the world and it lies amidst a substantive discourse about the political or institutional difference legal practices make and a foundational discourse about the truth-aptness of propositions in general. The second one is about the direction of fit between true representations of legal content and the world and it lies amidst a
23 To paraphrase a similar point made by Kenneth Ehrenberg with regard to Dworkin’s suspicion against metaethics, he seems to have neglected the level at which the “skeptic” can be dubious about whether legal facts in general are an appropriate category for figuring into claims about what makes legal propositions true. See Kenneth Ehrenberg, ‘Archimedean Metaethics Defended’ in Metaphilosophy (2008) 39 (4-5): 508-29, p.513 24 My selection is not meant as a prioritization of questions that matter from a metajurisprudential point of view. By virtue of the reconfiguration of the site of jurisprudential disagreement further questions can be also classified as metajurisprudential. For instance, in Legality Shapiro addresses the question of what epistemological theory is most appropriate for the purposes of legal philosophy. Tellingly, he describes the question as a ‘metainterpretive’ problem and identifies the meta- interpreter as ‘someone who evaluates interpretive methodology in the first stage of legal interpretation. An interpreter, on the other hand, is someone who uses a particular interpretive methodology to interpret a legal text in the second stage of legal interpretation.’ (Legality, supra note 19, p. 305).
29 substantive discourse about the practical difference legal practices make and a foundational discourse about which normative concepts are primitive.
On the one hand the envisaged reconfiguration of the site of jurisprudential disagreement enables some revisionary thinking about the ontological indispensability of legal facts. For as long as our discourse is premised on the idea that true legal propositions purport to report legal facts, the available maneuvering space remains restricted by the degree of flexibility of our linguistic representations. Thus, given this restrictive premise, the only two cognitivist alternatives to a blunt non-reductive realism about legal facts are no less semantically biased; either we should paraphrase talk about legal facts to a talk about a type of “non-offending” entities and derive our truthmakers from the latter or we should eliminate our legal talk tout court as literally false and seek the origins of law outwith the realms of analytic jurisprudence as narrowly construed. By contrast, if we elevate the level of abstraction by replacing legal facts with the truthmakers of legal propositions it will become more natural to say that there may be a way of preserving the veridicality of our legal discourse without pledging any ontological commitment to ontologically frivolous entities.25
25 Heather Dyke proposes a quadripartite division of ontological theories that rely on the same, fallacious, as she argues, metaontological position, namely, the claim that our ontological commitments should be responsive to the formal structure of our linguistic representations; see H. Dyke, Metaphysics and the Representational Fallacy, New York: Routledge, 2008. Dyke invites us to witness the re-enactment of a dispute between four philosophers. Philosopher A is a non-reductive realist about lurches. In support of her argument she says that one merely has to recognize that there are many true sentences
30 On the other hand the same reconfiguration will allow a revisionary approach to the question of whether legal facts are normatively indispensable. On the standard picture, if we refuse to take on board legal facts as normatively relevant considerations the price we are called to pay may be too sour for the taste of many. We will either have to conclude that legal normativity is reducible to the normativity of another domain of discourse, for instance, morality or rationality, or we will be led to declare that law is not normative in any informative sense either because legal facts do not exist or because legal facts are only derivatively normative. As I purport to demonstrate, the non-reductive, reductive and eliminativist accounts of legal normativity are all silent entailments of a restrictive understanding of the site of jurisprudential disagreement as pertaining to the grounds of legal facts. All accounts converge in their assumption that law’s normative capacity is measured by the degree at which legal facts can emulate the reason-guiding capacity of other kinds of fact. As soon as we that include the term “lurch”. Philosopher B is a reductivist-realist. She retorts that there are no real lurches even though sentences featuring this term are literally true. But she also denies that the truth of these sentences commit her to accepting the reality of lurches because these sentences can be paraphrased into sentences that make no reference to lurches and also reveal our true ontological commitments. Philosopher C is an error theorist. She interjects by saying that she denies both the reality of lurches and the fruitfulness of the paraphrasing strategy because the paraphrasing sentences do not have the same meaning with the paraphrased sentences. Whereas the sentence purports to refer to lurches it is simply false because lurches do not exist. Finally, Philosopher D advances an expressivist argument. She remarks that A, B and C are wrong in their assumption that the use of these sentences is descriptive. Whereas they appear to describe a thing they actually perform another linguistic function (ibid, pp. 2-4). In what follows I shall concentrate of the first three cognitivist positions leaving the expressivist option aside.
31 switch to a level of abstraction featuring the truthmakers of legal propositions we may be in a better position to preserve the mind-to-world direction of fit of our true representations of legal content without assuming that the truthmakers of these propositions can be normatively impactful only in virtue of their operating as normative reasons.
If there is a leitmotiv in the backstory I have been trying to sketch it is the idea that the questions pertaining to the foundations of legal philosophy are not necessarily reducible to the questions pertaining to the grounding of legal facts. That being said, although I will be no less interested in questions of legal grounding their relevance will emerge as soon as the reconfiguration of the site and scope of theoretical disagreement about law will qualify as a template for the production of a new metajurisprudential taxonomy. This alternative map is not meant to subvert the diagnostic utility of our most familiar terms, like “exclusive or inclusive positivism”, “natural law”, “interpretivism”, “legal realism”, “exclusionary reasons” or “content- independent reasons”, but to supplement it by enlarging the domain of informative contrasts and affinities between theories of law whose first- order commitments vis-à-vis the grounds of legal facts would not allow any
“rapprochement”.
In the service of this enlargement I shall take the liberty of recruiting
Ronald Dworkin’s integrity theory of law26, Joseph Raz’s service conception
26 Although the argument from integrity has first appeared in Dworkin’s seminal paper ‘Hard Cases’ in Harvard Law Review (1975) 88 (6): 1057-109, pp. 1083-101, Law’s Empire remains the locus classicus for the theory of integrity. Ancillary sources will include Dworkin’s more unified treatment of the concept of interpretation in Justice for Hedgehogs,
32 of legal authority27, Scott Shapiro’s planning theory of law28 and Mark
Greenberg’s moral impact theory29 as the four exemplary illustrations of the potential impact of metajurisprudential scrutiny. As I purport to demonstrate this sampling is anything but random. Cumulatively they represent an ideal amalgamation of analytic jurisprudence’s gradual descent from what I have referred to above as the modal peak in the
supra note 11, as well as his extensive elaboration of the “stages” in thinking about law (semantic, jurisprudential, doctrinal, and adjudicative) and the concomitant different concepts of law (taxonomic, sociological, aspirational, and doctrinal) in the collection of essays entitled Justice in Robes, Cambridge MA: Belknap Press, 2006. 27 Even though Raz’s development of his idea about the nature of legal authority is evenly spread across his prolific scholarship, I will attempt to single out as reference material the seminal moments in the deployment of his theory. These moments will include two collections of essays and two monographs. These will be in order of first publication The Authority of Law: Essays on Law and Morality (Revised Edition), Oxford: Oxford University Press, 2012 (original publication year 1979), Part I of The Morality of Freedom, Oxford: Oxford University Press 1986, Practical Reason and Norms, (with a new postscript) Oxford: Oxford University Press, 1999, and Part II of Ethics in the Public Domain: Essays in the Morality of Law and Politics (Revised Edition), Oxford: Oxford University Press, 1994. 28 My main source of reference will be Legality (supra note 19). Two instructive precursors of Shapiro’s theory of law are his ‘Law, Plans, and Practical Reason’ in Legal Theory 8 (2002): 387-441 and his ‘The Hart- Dworkin Debate: A Short Guide for the Perplexed’ in Arthur Ripstein (ed.), Ronald Dworkin (Contemporary Philosophy in Focus), Cambridge: Cambridge University Press, 2007, p. 22-55. 29 Mark Greenberg’s Moral Impact Theory of Law remains a work in progress; consequently, there does not exist a definitive source covering all the implications of his argument. That being said, the most autonomous elaboration so far is his ‘The Moral Impact Theory of Law’ in Yale Law Journal 123(5): 1288-1342. I will also rely on two further essays that demarcate the periphery but also the ambition of his theory. These will be ‘How Facts Make Law’ in Legal Theory (2004) 10 (3): 157–98 and ‘The Standard Picture and Its Discontents’ in L. Green and B. Leiter (eds.), Oxford Studies in Philosophy of Law, Volume. I, New York: Oxford University Press, 2011, p. 39-106.
33 philosophical dispute about the relation between law and morality.30 Driven by different visions all four model theories converge in their rejection of crude supervenience accounts of the co-variation between descriptive and legal facts and offer, instead, valuable insights in the relevance of grounding explanations in law.
As evidenced by my preceding remarks on the relation between legal truth and the world as well as on the association between practical normativity and guidance by reasons, the criteria I purport to apply for an alternative taxonomy are derived from the distinctions that emerge as soon as we allow the scope of our local disagreement about the grounds of law to encompass questions about our unpronounced metaontological and metnormative commitments. These distinctions will be amply addressed in the two consecutive segments of this thesis, the first one being about the metaphysics of law and the second one about the normativity of law.
Nevertheless, a few “spoiler remarks” could accomplish what a more extensive adumbration might misidentify as an unbearably packed starting argument.
On the one hand I intend to argue that the emerging division of opinion with regard to the relation of legal truth to reality should migrate from the domain of what there is to make legal propositions true to the domain of what should dictate the ontological commitments of a theory of law. I will preface this shift of focus by clarifying what I mean by ontological
30 For a concise mapping of these different approaches, see James, Morauta, ‘Three Separation Theses’ in Law and Philosophy (2004) 23 (2):111-35.
34 commitment. As it is commonly used ontological commitment is a technical term but this does not prevent philosophers from endowing it with potentially conflicting meanings. That being said there is at least convergence in the acknowledgment of the Ockhamite flavor of this term. At this highest level of abstraction ontological commitment is a success term in the sense that it can be associated with the score assigned to any metaphysical theory when judged for ontological parsimony.
One way of adding some concreteness to this claim is to say that a theory’s success is measured by how much ontological baggage it can unload by way of reducing or paraphrasing sentences quantifying over obscure entities into sentences free of “offending” entities. In this regard a theory’s ontological commitment will be those quantified entities that the theory’s reduced sentences cannot do without if they aspire to merit the label of being true. This approach has been traditionally associated with
Quine’s quantificational argument31 that a proposition carries a commitment to the existence of those entities which must feature in the proposition as the values of the variables bound by quantifiers for the proposition to be true. On an alternative understanding the ontological commitment of a theory will be a subset of the entities that the theory’s sentences represent as existing. The critical subset will feature those entities whose existence can make what entities the theory says there are true. What is crucially
31 See his seminal ‘On What There Is’, originally published in Review of Metaphysics (1948) 2(5):21-38, and reprinted in his From a Logical Point of View, Harvard University Press, 1953 (revised edition 1980).
35 important on this view is that the committing entities need not figure in the truth-conditional analysis of the theory’s sentences; all they need to be endowed with is real being. The second approach has been traditionally identified with David Armstrong’s truthmaker theory32 according to which the ontological commitments of a theory are determined by the truthmakers of the propositions expressed by its sentences and not by their truth conditions.33
What I purport to demonstrate in the first part of this thesis is that all four exemplary theories of law are tacitly approving of the first view on the
32 David Armstrong, Truth and Truthmakers, Cambridge: Cambridge University Press, 2004. In the course of my argument I will rely on Ross Cameron’s qualified version of the truthmaker theory. For instance, contrary to Armstrong’s espousal of the Quinean criterion that if a theory T includes the sentence ‘a exists’, a is an ontological commitment of T, I will subscribe to Cameron’s dissenting opinion that, as he remarks, ‘one of the benefits of truthmaker theory is to allow that
36 nature of ontological commitment. I say tacitly because, as I will adequately clarify in the forthcoming first part, the approach I venture is reconstructive, not exegetical for the simple reason that the primary aim of these theories is to offer a complete account of the grounds of legal facts, not of the foundations of legal philosophy. As a result, my attribution of
“Quineanism” will be based on evidence rather than explicit references to this point. To illustrate my reconstructive endeavor I will term the jurisprudential variant of “Quineanism” about ontological commitment legal propositionalism with a view to locating the primary source of evidence for the sympathy of legal philosophers for its methodology in the ease with which they move from talk of true legal propositions to talk of legal facts.
That being said, the reconstructive flavor of this line of reasoning becomes perceptible as soon as we hypothetically address to our exemplary legal philosophers the question of what precisely is the entity they are ontologically committed to. If my guess is right, they would most probably report legal facts as the object of their commitment whilst reserving judgment about the categorial profile of legal facts. Differently put, it will remain an open question whether legal facts are facts about the obtaining of relations of legal obligation, rights or powers, the instantiation of the property of legality or legal validity, the existence of legal norms or the requirements emanating from law qua source of requirements. As I aspire to demonstrate, these alternatives are not trivially interchangeable at least from an ontological perspective. Consequently, a first reconstructive step
37 will involve the disambiguation of the categorial profile of legal facts. This first step requires a unified regimentation of the diverse linguistic representations of legal content by our four exemplary legal philosophers with a view to scoring a first hit on the way to a more parsimonious ontology.
The first phase of our reconstruction will deliver an objectual reading of our representations of legal content as an appropriate platform for the ensuing division of opinion. On this minimally offending regimentation legal propositions will feature legal norms or, in holistic terms, the content of the law as one of their constituents. This unified semantic treatment of assertions of legal content is not meant to exclude alternative analyses but to serve as the source of informative distinctions. This is precisely what the second stage of the reconstruction is planned to accomplish. The idea is that as soon as we have a template regimentation of assertions of legal content our Quinean or anti-Quinean intuitions may begin to flourish. As far as I can see, there is more than one way to be a Quinean about metaontology or, in our case, a legal propositionalist and at least one way to be an anti-Quinean or a truthmaker theorist. The rich modality of Quine’s metaontology is a corollary of its main premise, namely, its heavy reliance on the metalinguistic regimentation of natural language discourse.
Propositional analyses of true sentences can attain a higher degree of fine- grainedness such that more than one routes from language to the description of the world become available. By contrast, the truthmaker
38 theorist will spend less time thinking about the ideal truth conditions of this or that proposition as well as the demands they place on the world and focus instead on the demands that the world is supposed to place on what we aspire to represent as true. The metajurisprudential taxonomy that the second phase of reconstruction will eventually deliver aspires to be joint- carving by featuring only three alternative routes within the legal propositionalist camp for four sharply distinct theories of law. This will not be a problem as allowing the ascension to a higher level of abstraction is precisely aimed at showcasing the archetypal affinities between phenomenally irreconcilable views.
As a result I will suggest that there are three theoretical options for someone who is a cognitivist about legal content and a legal propositionalist in her jurisprudential commitment. A first option is to be a non-reductivist about logically regimented legal content such that what will qualify as a proper truthmaker for a regimented legal statement (legal proposition) is a legal fact construed either as a fact about the existence of a legal norm or a fact about what forms part of the content of the law of a given system. In this line of thought I plan to integrate Joseph Raz’s account of the constitution of legal norms by authoritative directives and Mark
Greenberg’s account of the constitution of legal content by facts about moral impact. A second option is to venture a reduction of talk about legal norms or holistic legal content to talk about a “non-offending” entity and consequently to derive one’s truthmakers from the true representation of
39 the latter entity. Tellingly, Scott Shapiro’s planning theory of law can be a fitting instance of this strategy if we take into consideration that he propounds a reductive account of legal norms in terms of plans and proceeds to qualify our loose talk of legal facts in terms of a more informative talk about the existence of plans authorized by an institutionally embedded master plan. Last but not least, the option of “rupture” invites us to treat the recommended regimentation of legal assertions as literally false not because there is no such thing as legal truth but because there is an alternative route to legal truthmakers that avoids the pitfalls of the former.
The reconstruction will present Ronald Dworkin as a promising instance of this strategy mainly by way of capitalizing on his thoroughly normative objection to treat the fittingness of legal practices and their justification as numerically distinct stages in the process of making law.
In this reconstruction I have deliberately withheld reference to the legal application of the truthmaker view of ontological commitment for the simple reason that the candidate theory that can fill in this slot must not be reconstructed, but constructed. That is to say, I will venture to challenge all four exemplary theories of law by attacking their common premise that the truthmakers of legal propositions must be structurally bound by their truth conditions. This will not be an easy task mainly because it is not immediately evident what could be the thing that can preserve the literal truth of our talk about legal content and yet have no structural resemblance to it. In this regard I will rely heavily on my readers’ clemency not with
40 regard to the entire process of unfolding of my argument but only with regard to the first appeal its disclosure may make. I am taking the liberty of asking for tolerance with a short expiration date for the reason that the first paragraphs in which the argument will be deployed will inevitably be more stipulative than demonstrative.
The truthmaker view that I will favor inclines me to reject legal facts or whatever they are reducible to as the truthmakers of legal propositions thus inviting a more or less radical departure from what has been presented so far. Facts about which obligations, rights or powers34 are enforceable in a given community will serve as my favored representation of the distance that separates legal truth from how the world looks like. The flavor I purport to give to this type of facts and their grounding will be antipositivist but this will not exclude the possibility of positivist applications of the truthmaker view.35 In this respect my argument will aim to enliven the
34 This is not to say that a legal power-holder is liable to being forced to exercise a power if he fails to exercise it when needed but in the sense that an abusive exercise of power can be sanctioned with nullity or offset by other corrective remedies. A further implication of this approach is that it makes the legal status of duties or powers that are not judicially enforceable dubious. Constituent power or some aspects of legislative or constitutive power—including the power to legislate new powers—seem to fall under this evasive category of non-enforceable notions in the sense that no sanction is available as a coercive response to their potential abuse. 35 For instance, nothing prevents a critic of my approach from adopting a probabilistic account of enforceability. On this descriptive account, enforceability is a probabilistic disposition such that, if φ-ing is enforceable, it is highly probable that X will be forced to φ or punished for not φ-ing if she does not φ. Notice that on this descriptive approach enforceability turns out to be a property of actions, rather than obligations. This is a direct consequence of associating enforceability with the probability of sanctions.
41 controversy rather than to exclude others from reanimating it in a different way. Talking about enforceable obligations will be shorthand for canonical statements about the enforceability of joint requirements qualified by a reference to a characteristic stimulus and a characteristic manifestation or manifestations. As I purport to argue, the overtly dispositional analysis of the concept of enforceability is premised on a normative understanding of what it means for an obligation, right or power to be efficacious within the context of a political community. In this respect, I will preclude any association of efficacy with a probabilistic sanction-based conception of effectiveness.
On the view I plan to defend instances of conformity with enforceable obligations, instances of exercise of enforceable rights or powers as well as instances of their enforcement are associated with a characteristic normative “footprint” which attests to the normative flavor of the efficacy associated with the concept of enforceability.36 There are two aspects of efficacy that need to be further unpacked. The first aspect points toa connection between the ontological dispensability of legal facts and their normative redundancy. By the latter term I intend to convey the idea that ontologically superfluous entities induce beyond necessity a “double-
36 It is important to notice that literally speaking what is normatively loaded is not the disposition itself but its manifestations and manifestations of a disposition are events or states of affairs, not dispositional instances. By contrast, dispositional instance is a singular fact of the form A is disposed to x if y. Manifestations of enforceability will be normatively explainable in terms of the upholding of what I will refer to as the Principle of Trust Validation. For more hints about the role I intend to assign to this principle cf. the immediately following paragraphs in the main text above.
42 counting” of normatively relevant facts. If, as I purport to argue in the first part of the thesis, it turns out that non-legal facts (like dispositional facts about enforceable obligations and rights) are better candidates for figuring in an explanatory relation of truthmaking to legal propositions, it will make no sense to insist on reserving an essentially or contingently normative role for legal facts on pain of counting twice facts about legal content as normatively relevant.37 The second aspect of efficacy regards the normative effect of satisfying an enforceable requirement. Efficacy thus construed is not reducible to the upholding of a particular duty, right or power. In other words, it is not about the realization of the value or the justifying principle peculiar to a particular duty, right or normative power. If that were the case efficacy would collapse into a semantic platitude: a duty is such that it
37 In the rest of this exposition I will—clumsily perhaps in default of a better term—adhere to a terminological distinction between legal facts proper (that is facts about the existence of a distinctly legal kind of entities like norms or obligations) and facts about legal content. In the latter case the adjectival use of legality is deflationary in the sense that it is not meant to carry any ontological weight but rather is shorthand for whichever relation obtains between the normative content expressed by legal utterances and the political community within which this content becomes applicable. In that sense, both legal facts and their rival facts about enforceability are (competing) varieties of facts about legal content. On this qualified construal of the term ‘legal content’ it would be an instance of double-counting to maintain that facts about legal obligations (legal facts proper) are normatively relevant over and above facts about enforceable obligations (dispositional facts about enforceability) or that the former provide a further reason for compliance. This remark parallels a problem raised by Jonathan Dancy when he says that if a verdict about the overall balance or normative reasons or rightness were allowed to count as a reason for itself ‘we would be forced to reconsider the balance of reasons once we had asserted [the verdict] in a way which would continue ad infinitum. Which is ridiculous” (see Jonathan Dancy, Ethics Without Principles, Oxford: Oxford University Press, 2004, p. 40).
43 manifests its normative efficacy when it is fulfilled or enforced, or a right or a power is such that it manifests its efficacy when it is exercised or enforced. On pain of redundancy manifestations of enforceability should be such that they confer an additional, extrinsic normative property to instances of actual conformity, exercise or enforcement which is not reducible to the property of realizing the value or instantiating the principle that grounds this or that particular duty, right or power. I will identify the normative footprint of instances of conformity, exercise or enforcement with the property of validating trust among members of a particular political community that there are agent-neutral reasons to act in a particular way, or an agent-neutral reason as to why one should be able to act in a particular way or to be able to effect some change in what one already has a duty or right (or even power) to do.38
In more formal language, the argument is planned to go as follows: to say that A’s obligation to φ is enforceable in a given community S is to say that,
38 The concept of agent-neutrality figures so prominently in the relevant discourse that it merits a dissertation of its own! For the purposes of this exposition, I will not commit myself to the metaphysical relation between agent-neutral and agent-relative reasons. An aspect of this debate focuses on the question of what is the direction of ontological dependence between these two kinds of reason. One approach takes agent-relative reasons as basic such that an agent-neutral reason is an agent-relative reason for everyone. Mark Schroeder describes this position as the Quantification Strategy and he proceeds to defend it against varieties of what he terms the Inversion Strategy which inverts the order of explanation such that an agent-relative reason is to be understood in terms of an agent- neutral one. For an informative overview of this controversy, see Mark Schroeder, ‘Reasons and Agent-Neutrality’ in Philosophical Studies (2007) 135:279-306.
44 if A φ’s or if S ψ’s as a response to A’s not φ-ing39, A’s obligation is disposed to validate trust that all members of S share the same reason to φ.
Similarly, to say that A’s right to φ is enforceable will be to say that, if A φ’s or if S ψ’s in response to A’s not being able to φ, A’s right is disposed to validate trust that all members of S share the same reason as to why they should be able to φ. Finally, to say that A’s power to φ is enforceable will be to say that, if A φ’s or if S sees to it that A’s abusive φ-ing will not count as a proper φ-ing, A’s power is disposed to validate trust that all members of S share the same reason as to why they should be capable of bringing about a change of normative status by φ-ing. Moreover, we can arrive at a more fine-grained version of enforceability’s trust-validating manifestations by allowing some distinctions further downstream. Thus, if A φ’s, A’s φ-ing will constitute a reaffirmation of the relevant kind of trust, whereas if S ψ’s in response to A’s not φ-ing (if A is obligated to φ) or not being able to φ (if A has a right to φ) or abusively φ-ing (if A has the power to φ), S’s ψ-ing will constitute a restoration of trust. In this regard, enforceability or the disposition to validate trust will be treated as a multi-track disposition capable of producing two distinct types of manifestation: instances of trust reaffirmation and instances of trust restoration.
The third and final step of this reconstruction will guide us back to the first level of theoretical disagreement about law. After all, this is where this
39 I will associate manifestations of actual (direct or secondary) enforcement with a political community’s institutional responses to instances of non-conformity with obligations, instances of practical or juridical incapacity to exercise a right as well as instances of abuse of power.
45 quest began from in the hope that by the time of our return we may be armored with some extra insights as to how to explain facts about legal content. The outcome I envisage is considerably humble about the prospect of having a winning argument about the grounds of law any time soon but for a novel kind of reason. What should explain the difficulty in giving definitive shape to our disagreement about the grounds of law is not the fact that the quest for comprehensive answers constantly challenges the boundaries of legal philosophy vis-à-vis neighboring branches (like moral, political and social philosophy) but the fact that our disagreement about the grounds of law should be prefaced by an extensive digression into our disagreement about the foundations of legal philosophy. On the pay-off side of this digression figures a noteworthy accomplishment; as soon as we become aware of the intricacies of what serves as a background for our first-order disagreements we may eventually wipe off the last residues of suspicion about the centrality of foundational disagreement in law.
Taking a steep bank turn to my initial remark about the enlargement of the scope of jurisprudential disagreement there awaits the other half of metatheoretical inquiry that the reconfiguration of the site of our disagreement has also enabled. More specifically, my suggestion will be that there is a parallel metanormative bias among legal philosophers in favor of subjecting legal facts or, whatever they are reducible to, to a test of
“reason-hood”. I intend to argue that discussions about the normative import of law have been taking place in the wrong ballpark mainly because
46 they tend to measure the robustness of legal normativity by assessing its proximity with an ideal rapport between reasons and our rational capacities or, in Joseph Raz’s standard-setting expression, Reason. Raz describes this ideal attunement as the Nexus which he further unpacks by employing the concept of a normative reason as primitive. In his own words, ‘[T]he point is that normative reasons must be capable of providing an explanation of an action: If that R is a reason to φ then it must be possible that people φ for the reason R and when they do, that explains (is part of an explanation of) their action’.40 Whereas I do not intend to question the explanatory contribution of the concept of Nexus to our understanding of practical normativity, I do intend to argue that it is potentially misleading to apply this concept as a success term across a broader spectrum of normative phenomena. Consequently, I will take issue with approaches in theories of legal normativity that test legal facts or whatever they are reducible to for how adequately they can rationalize our law-conforming behavior.
Steering the discussion closer to what I believe is the right ballpark will require more than a sample of creative imagination. The idea I aim to employ does not possess the spin of a meteorite, so to speak, as it is already embedded, if not faintly articulated, in familiar discussions about the distinction between subjective and objective reasons as well as about the wide or narrow scope formulation of requirements of rationality.41 What has been missing so far, I tend to believe, is the incentive to look at the bigger
40 Joseph Raz, From Normativity to Responsibility, Oxford: Oxford University Press, 2011, p. 27.
47 picture as we rise above the local tensions between reasons and value. In this regard, Joseph Raz’s account of the Nexus is a remarkable leap forward for a reason that is structurally similar to what explains the importance of
Dworkin’s achievement in alerting us about our modal obsession with how law and morality are related. Keeping analogies in perspective, Raz has scored a great achievement by inviting us to leave behind the internalism- externalism dilemma about normative reasons.42 In its essence, this divide is also crafted on the basis of a modal dilemma, namely, the question of whether reasons are necessarily or contingently related to motivation.
The decisive twist in Raz’s argument against this model of thought is the switch he endeavors from talk about (the possibility of) motivation to talk about Reason or our capacities qua rational agents. The importance of allowing a switch between an action-centered (motivation) and an agent- centered (rational capacity) concept becomes evident as soon as we realize that it further enables a switch between two types of question. Whereas
41 I will briefly comment on these discussions in the introductory section of the second part of my thesis. 42 Adjudicating the debate between reasons-internalists and reasons-externalists will stray us far away from the main target of this thesis. That being said, it is worth noting that as it is commonly articulated this debate is about the existence conditions of reason giving-facts and as such it has invited contributions from without moral philosophy proper, including philosophy of action, metaphysics and philosophical psychology. The crux of the relevant controversy lies in identifying the role of facts about our actual or counterfactual motivational states with regard to the grounding of facts about what reasons we have or what reasons there exist. Despite their strikingly conflicting internal divisions internalists hold that part of what it is for something to be a reason for action is that it must bear some relation to a motivational fact, whereas externalists model their position on the rejection of this schematic premise.
48 externalists affirm and internalists deny that there is always a reason to do what would in some respect be right, Raz’s nexus provides a negative answer to the question of whether there is always a reason to do what would in some respect be good.43 The previous remarks are meant to make explicit that the Nexus marks a clear shift from focusing on the relation between an elusive mind-independent property of rightness and reasons
(internal or external) to the question of how value can become normatively compelling for us qua agents.
That being said, there is a further point that has been evading Nexus’ grid. Whereas the Nexus purports to occupy a significant portion of the normative universe, it would be wrong to assume that the farther something strays from its contours the weaker its normative grip gets. In a more figurative prose a better way to explain this distancing effect is to entertain the hypothesis that what is happening instead is a shift between quadrants of the normative cosmos such that the fainter affinity with the Nexus becomes the stronger the gravitational pull of a neighboring quadrant gets.
Leaving metaphors aside I do intend to preserve the notion of quadrant as an explanatorily useful neologism mainly because my argument against the universal applicability of the Nexus will be that the normative plane is
43 By sharp contrast with the possibility of motivation the possibility of correctly exercising our rational powers does not track but limits the extension of the concept of a normative reason. Our rational capacities perform this limiting task by way of indicating which values are apt for serving as a standard of our appraisal qua agents. For an elucidation of Raz’s departure from a standard internalist conception of the normativity of reasons see Ulrike Heuer, ‘Guided by Reasons: Raz on the Normative-Explanatory Nexus’ in Jurisprudence (2012) 2 (2):353-65.
49 divided not by a straight line separating thinner from more robust applications of the Nexus but by two axes of normative relevance.
In this two-dimensional scheme44 the Nexus will occupy only one of the four quadrants of the plane and among the three left I will suggest that only the farthest—with respect to the Nexus—quadrant is a hospitable region for law. At the same time I shall not neglect to highlight how the Nexus can be compatible with this new scheme by defending its two-dimensional translation. On this alternative parsing to say that X falls within the Nexus quadrant is to say that X’s coordinates are provided by virtue of the satisfaction of two identity conditions: (i) what favors the performance of a particular action or the adoption of a particular attitude A just is what explains the behavioral response of an agent O that exemplifies A and (ii) what serves as a standard of evaluation of O’s moral profile just is what explains this behavioral response of an agent O that exemplifies A. The first condition will be represented by the axis of normative salience and the second condition by the axis of normative impact.45
The axis of salience will feature a positive half where the fact that favors a response and the fact that explains its occurrence are one and the same and a negative half where the fact that favors a response and the fact that explains its occurrence are can diverge. In less cryptic language, the
44 Cf. Figure in Appendix
45The second condition is less uniformly articulated in the relevant literature but its traces can be found in arguments to the effect that O’s recognition that X is a reason to φ makes O’s φ-ing a reflection of her normative profile as a moral, rational or prudent agent.
50 positive salience half will represent instances of normativity that display the capacity of guiding our responses, whereas the negative salience half will host cases of normativity that display the capacity of merely constraining our responses. By analogy, the axis of impact will feature a positive half where the fact that serves as a standard of appraisal of one’s moral profile and the fact that explains one’s actual response are one and the same fact and a negative half where the fact that serves as a standard of appraisal of one’s moral profile and the fact that explains one’s actual response can diverge. To demystify my prose, the positive impact half will represent instances of normativity that enable our responses to serve as depictions of our actual moral profile and the negative impact half will host cases where our responses serve as a public constitution of our counterfactual or ideal moral profile.
Although I still owe a great deal of unpacking in the relevant part of the thesis, I dare to believe that it is already roughly evident how we can infer four different normative recipes from this two-dimensional mapping.46 As it stands, the Nexus will occupy the depictive-guiding quadrant: full-fledged normative reasons are those facts that can simultaneously enable the action they favor to reflect our character in our actions and explain our acting.
Moreover, this new map offers three more potential habitats raising the total number of available models of normativity to four. Thus along with the
Nexus quadrant this two-dimensional mapping features three more
46 Cf. figure in Appendix
51 quadrants which, if ordered according to their proximity to the Nexus, they can be enumerated as the constitutive-guiding quadrant, the depictive- constraining quadrant and the constitutive-constraining quadrant. Of all four quadrants I will suggest that only the last one (constitutive- constraining) has been left unexplored by available theories of legal normativity and, as one may already suspect, its oblivion makes it even more attractive for an alternative proposal.
As previously remarked, on the standard metanormative view theories of legal normativity are identified by the degree of their robustness which is determined by their quadratic proximity to the Nexus model. In this regard
I will suggest that Joseph Raz’s theory of exclusionary reasons and Mark
Greenberg’s bindingness hypothesis47 are the two most robust theories of legal normativity thus fitting better into the Nexus quadrant. The Razian concept of an exclusionary reason can in principle be understood as encapsulating the conditions48 on which conformity with law is both required and depictive of a proper exercise of our rational capacities.
Similarly Greenberg’s treatment of bindingness as an ultimate property of
47 For the seminal presentation of Greenberg’s theory of bindingness, see his ‘The Standard Picture and Its Discontents’, supra note 29, p. 84-96. 48 These conditions are set out in his extensively debated Normal Justification Thesis. In Raz’s own words, the normal way to establish that an authority can be the source of robust reasons for action “involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly.” (The Morality of Freedom, supra note 27, p. 53)
52 legal systems rather than of legal obligations points to a normative-kind- based conception of legal reasons for action such that a legal fact qualifies as a non-defective member of a legal system if it succeeds at furnishing a morally compelling reason for action.49 At closest proximity lies Ronald
Dworkin’s account of the force of law. Drawing on Dworkin’s general concept of a community of principle it follows that a legal or political community is a community of integrity and as such it will condition the binding force of its practices on the degree at which the latter instantiate the principle of integrity. The value of integrity is inherently action- guiding50 but the moral attribute of “equal concern and respect” it assigns to agents is not a function of their actual awareness of its compelling character but a constituted property. As Dworkin remarks, the equal concern for all members of the community ‘is an interpretive property of the group’s practices of asserting and acknowledging responsibilities…not a psychological property of some fixed number of the actual members’.51 At a greater distance lies Scott Shapiro’s account of the inner rationality of law
49 As Greenberg notes, ‘[T]he hypothesis is not that generating binding obligations is an aim of legal systems, but rather that it is a constraint on how a legal system is to go about fulfilling other aims, such as changing the moral situation for the better’ (in his ‘The Moral Impact Theory of Law’, in Yale Law Journal 123(5): 1288-1342, p. 1323 fn 72). 50 By ‘inherently’ I mean to include both legal officials and citizens. It is misguiding to assume that the principle of integrity is only meant to guide the Herculean judge in her deliberation. In the relevant position I will associate Dworkin’s understanding of the action- guiding capacity of reasons of integrity with the capacity to provide reasons for enforcement on demand. 51 Ronald Dworkin, Law’s Empire, supra note 7, p. 201.
53 which he presents as a very thin conception of legal normativity.52 On his account, descriptive facts about the existence of plans are normatively inert and only the actual adoption of their authorizing master plan rationally commits us to intending to act in accordance with a particular sub-plan.
One can satisfy this rational requirement either by acquiring the intention to implement the plan or by retracting his approval of the system’s master plan. As such this is a characteristic application of the wide-scope account of requirements of rationality that purports to unpack their normativity in terms of the value of consistency among one’s attitudes.
This exposition will leave the most distant, constitutive-constraining quadrant void of occupants. In one sense this could be interpreted as a clear indication that no matter how extensively we challenge the flexibility of our concepts law would fail to be a fitting occupant for this isolated part of the normative cosmos. On the other hand, it is part of the fallacy behind the metanormative bias in favor of whatever approximates the Nexus that the farther we drift away from the Nexus the feebler our normative aspirations become. This is precisely the worry I would like to dispel by way of exploring how facts about enforceability can figure in a robust albeit faintly
52 Again I will invite the reader to understand the attribution of thinness as a judgment of relative proximity to the Nexus. Shapiro cautions about the thinness of the normativity account he proposes when he remarks that ‘the normativity of the master plan of a legal system is of a very limited sort. While legal officials are rationally required to conform to their shared plan, it is also true that those who do not accept the law are not similarly bound. Furthermore, the master plan of a legal system may be morally illegitimate and hence not capable of imposing a moral obligation on anyone to obey.’ (Legality, supra note 19, p. 182).
54 akin to the Nexus account of legal normativity. On this alternative view, the fact that an obligation is enforceable in a given community places a wide- scope constraint on manifestations of enforceability. Enforceability-related requirements are not action-guiding for the reason that they take wide scope over alternative ways of satisfying them. These alternative ways of satisfying enforceability-related requirements correspond to the types of manifestation of enforceability such that, for instance, the fact that an obligation to φ is enforceable requires that it be conformed with or enforced, or by virtue of the more fine-grained, canonical analysis of enforceability, the same fact requires that trust in the agent-neutrality of the reasons favoring φ be reaffirmed or restored. At the same time, the fact that someone conforms with an obligation to φ or the fact that the community responds to A’s omission to φ provides the necessary “material’ to construct A’s public profile as a member of an “empire” of civic trust.53
53 In the relevant section about the relation between law-practices and the principle enjoining the validation of trust, I will take the liberty of re-appropriating Dworkin’s own locution about the empire of law as integrity in the hope that my use of the term will not be perceived as idiosyncratic or distortive of Dworkin’s point but as a corroboration of the latter. The route to achieving this corroboration is reconstructive, not exegetical and as such it will come at a price albeit affordable. The cost involved has two aspects. On the one hand my claim about the ontological dispensability of legal facts serves to subdue our aspiration about their explanatory potency. On the other hand, shifting from talk about legal facts to talk about what is enforceable incurs a switch cost: it reverses the polarity in the relation between law-practices and political morality in the sense that instead of making the identification of legal-content-contributing practices depend on their justifiability by principles of political morality, it makes the applicability of principles of political morality depend on the justifiability of legal-content-contributing practices on grounds that are not themselves reducible to these principles. More specifically, I will argue that a good candidate for serving as an independent warrant of the trust invited by
55 The robustness of these requirements will not be a function of something intrinsically wrong or bad about the actions they constraint but a corollary of the fact that they make an intrinsically valuable kind of agency normatively possible. Instances of reaffirmation or restoration of trust in the obtaining of reasons we all share are cumulatively constitutive54 of an intrinsically valuable type of shared agency. The type of agency I have in law-practices is a legally qualified version of public reason. Ripstein makes a similar point when he ventures a distinction between Dworkin’s Herculean judge and a Kantian judge; he says, ‘Dworkin’s Hercules uses morality to render the application of positive law to particulars both determinate and morally appropriate. The Kantian judge, by contrast, applies positive law to particulars in order to make the relevant parts of morality apply to them.’ (Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy, Cambridge MA: Harvard University Press, 2009, p. 191, fn. 12). In Kant’s political vocabulary what serves as a criterion for the identification of practices as law-contributing is the normative standpoint of an omnilateral will (see ibid. p. 24 ff.) but nothing would in principle prevent an enlightened monarch from assuming this normative standpoint. 54 I owe my constitutivist inclination to Michael Bratman’s argument about the grounding of (wide-scope) requirements of rational coherence and consistency. The gist of his argument is that rational requirements do not directly bear on actions or attitudes by way of guiding them but they are constitutive of a valuable form of agency which Bratman identifies with the notion of self-governance. In his own words, ‘self-governance at a time involves, as a necessary constitutive element, relevant forms of coherence and consistency of practical standpoint at that time…The idea is that such self-governance essentially involves, not the intervention of a little person in the head, but rather guidance and control by attitudes that help constitute a sufficiently unified point of view, a point of view that constitutes the agent’s relevant practical standpoint.’ See his ‘Time, Rationality, and Self-Governance’ in Philosophical Issues (2012) 22: 77. Constitutivist arguments are not new in the literature on practical normativity. For instance, some philosophers of a Kantian conviction aspire to ground the normativity of morality in facts about the structure of agency. For a representative sample of this line of reasoning see Luca Ferrero ‘Constitutivism and the Inescapability of Agency’ in Russ Shafer-Landau (ed.), Oxford Studies in Metaethics, Volume 4, Oxford: Oxford University Press, 2009, p. 303-33. For a critical response, see David Enoch, ‘Agency, Shmagency: Why normativity won’t come from what is constitutive of agency’ in Philosophical Review (2006) 115(2): 169–98.
56 mind consists in jointly acting for the sake of each other’s freedom.55 Law is a constitutive condition for realizing this type of agency because the value of joint agency is not confined to the value of jointly bringing about a certain result like the building of a levee that protects everyone from flood but also comprises the value of (infinitely) instantiating abstract patterns of joint action that reflect the formal structure of upholding each other’s freedom like the activity of redistributing resources through ongoing cycles of tax collection. Legal requirements understood as requirements of trust validation make this type of agency possible by enjoining the consolidation of our trust that our involvement in these infinitely instantiable patterns of freedom-upholding joint action is not in the service of reasons that could not be shared by everyone and thus is not wrongfully coercive.
55 I entirely owe this idea to A.J. Julius. In its pure abstract form the idea is a reversal of the Kantian principle of right. On that principle, the reason for acting consistently with others’ freedom consists in the fact that exercising our capacity to set and pursue ends independently of others’ choices is intrinsically worthwhile. On Julius’ reversed version, mere independent purposiveness cannot bestow value on freedom-consistent actions. Consequently, the reason for acting consistently with others’ freedom consists in the fact that acting for the sake of the consistency of one’s action with others’ freedom is intrinsically worthwhile. In the former case the reason is independent purposiveness and in that sense it reflects an aspect of the intrinsic value of personal authority. In the latter case the reason is joint purposiveness or acting for the sake of each other’s freedom. This is not an authority-based reason but a reason grounded in the intrinsic value of doing freedom- upholding things together. In other words, the structure of the former reason is relational, whereas the structure of the latter reason is collective. For an overview of Julius’ argument cf. A.J. Julius, ‘Independent People’ in Sari Kisilevsky and Martin J. Stone (eds.), Freedom and Force: Essays on Kant's Legal Philosophy, Oxford: Hart Publishing, forthcoming April 2015, available at http://www.ajjulius.net/papers/independent%20people.pdf.).
57
PART ONE
THE METAPHYSICS OF LEGALITY
CHAPTER I
Metaontology and Metajurisprudence
I.1. Reconfiguring the Site and Scope of Theoretical Disagreement about
Law
The strategy I will pursue in this part will be considerably less flamboyant than what the title suggests. First off, I will try to show that the association of legal propositions with an account of truthmaking is a fairly common assumption among legal philosophers advocating remarkably different approaches to the question of what makes legal content true. Second, I shall argue that those who begin their ontological quest by inquiring into what makes legal propositions true are already exposed to the “virus of hardcore
58 metaphysics” without allowing themselves the receiving of proper treatment. To put it in a less graphical way, the postulation of truth- evaluable legal content would be a perfectly legitimate task as long as one would be willing to dedicate a considerable amount of arguing space for questions pertaining to the logical structure of the propositions amenable to truth-evaluation and the ensuing problems regarding the translatability of this logical structure into proper “ontologese”. By talking of the translatability of “legalese” into “ontologese”—instead of translation or, in proper truth-theoretic language, equivalence—I intend to convey the thought that the metaphysical quest—modest or immodest—of the legal philosopher starts way ahead of the quest for the ultimate grounds of the truthmakers of legal propositions.
By jostling, so to speak, our quest backwards I purport to relocate the site of theoretical disagreement about law a few crucial steps before the postulation of legal facts. Recalling the distinction brought up in the introduction between the site and the scope of legal disagreement it is important to note that insofar as it can be shown that the possibility of theoretical disagreement about law is existentially dependent on its site, the latter can also determine its scope, namely, the range of questions
(theoretical and metatheoretical) that one can plausibly ask with regard to the problem figuring in the site of our disagreement. In this vein, I shall argue that whereas the possibility of legal facts is not an existence condition for the possibility of theoretical disagreement about law, the possibility of
59 truthmakers for legal propositions is an indispensable premise if we want to make sense of our disagreement.56 This re-qualification of the site of jurisprudential disagreement is designed to serve a twofold purpose.
First, by featuring truthmakers instead of legal facts, that is, by ascending from the level of a determinate property to the level of a determinable one, it expands the scope of our disagreement to the realms of metajurisprudence. More precisely, it legitimizes the metajurisprudential question of how to make sense of the relation between legal truth and the legal philosopher’s corresponding ontological commitments. This is a metatheoretical question precisely because its object is not directly about the grounds of law but the ontological counterpart of truth in legal philosophy. By allowing this ascension to a higher level of abstraction, I will make a reconstructive move towards associating contemporary theories of law—positivist and antipositivist—with a metaontological position which I have chosen to call legal propositionalism. In very broad terms, this is the view that the truthmakers of legal propositions must be structurally isomorphic to the truth-conditional content of the latter. As I intend to argue, this is precisely the kind of metajurisprudential premise that lies behind the ubiquitous postulation of legal facts as the obvious or trivial truthmakers of legal propositions.
56 By announcing my intention to disprove the ontological utility of legal facts I do not aim to convey the impression that I also intend to do without the facts as an ontological category. What I purport to show is that the type of facts that can serve as truthmakers for legal propositions need not feature any distinctly legal entity as one of their constituents.
60 The primary objection I intend to put forward with regard to what I will opt to describe as the propositionalist methodology in legal metaphysics is that this approach takes for granted that there can be an easy transition from—talk about—legal propositions of whichever logical structure to—talk about—legal facts as their truthmakers and, consequently, to—talk about— the non-legal descriptive and/or normative facts that ground legal facts. My worry is that behind the seemingly trivial assumption that legal propositions are made true by legal facts—and that, henceforth, the main question is that of the grounds of legal facts themselves—lurks a metaontological controversy which, if properly articulated, can significantly reassign the
“battle positions” in the perennial dispute between legal positivism and legal antipositivism.
Second, the re-description of the site of jurisprudential disagreement in terms of the grounding of the truthmakers of legal propositions—instead of the grounding of legal facts—allows a radical reconfiguration of the first- order problem that remains covered by the scope of disagreement even by the lights of its initial parsing as pertaining to the grounding of legal facts.
Towards the middle of this part I will concede that whereas the substantive or first-order problem for legal philosophy is indeed a problem of grounding, I will deny that it is about the grounding of legal facts themselves. I will be referring to this reparsed version of the grounding question as the grounding question about law. More precisely, I will argue that the question of grounding in law is a corollary of a more general
61 grounding question regarding the possibility of materially or abstractly coincident objects.57
I.2. Replacing the Familiar with the Unfamiliar: Morality as a Dividing
Criterion
If my understanding is roughly correct, a peak moment in the relevant dispute as it has been commonly framed can be identified by the almost exclusively modal terms in which the debate about the grounding of legal facts ended up being conducted. What was thought to qualify as a winning argument should be framed as a defense or rebuttal of the proposition that, necessarily, legal facts are connected to moral facts in this or that respect.
This was perhaps the peak of the conceptual turn in analytic jurisprudence that culminated in H.L.A. Hart’s notoriously contested Separation Thesis.
The latter thesis as an argument about the separation of law and morals was subject to at least three angles of interpretation and dispute: an analytic question about the nature of law, a substantive question about the moral import of law and a metanormative question about whether settling
57 The grounding problem about law that I will also try to implant—properly translated— into our local discussion is not entailed by the metaontological dispute in which legal propositionalism figures as a competing view but serves as the terrain on which the latter view yields its substantive results.
62 the analytic dispute by itself entails a set of substantive propositions about the value of law.58
In the light of this modalized articulation of the divide between legal positivists and antipositivists my invitation to consider the value of reassigning the “the battle positions” in this debate purports to convey the thought that, perhaps, the relation between legal facts and moral facts is not part of the question that divides legal philosophers but a part of the answer to a more foundational question that could tow our quest towards the vicinity of debates in metametaphysics. As it will become evident in greater detail later in my exposition, I will try to question the methodological value of framing the controversy between friends and foes of legal positivism in terms of the necessity or not of the contribution of moral, or more broadly, normative facts to the grounding of legal facts. My emphasis on the methodological aspect of the role of morality in the determination of legal content is meant to leave intact the substantive aspect of it as I will be in no way trying to downplay the importance of explaining why morality is or is not relevant for the determination of legal content.
What I aim to achieve instead is to relocate the moment at which the task of settling the relevance of morality for law assumes its urgency. Given the standard method of staging the debate between legal positivists and
58 For a comprehensive overview of the modality of the relation between law and morality see Michael S. Moore, ‘The Various Relations between Law and Morality in Contemporary Legal Philosophy’ in Ratio Juris (2012) 25 (4): 435-71.
63 antipositivists, morality or, more generally, practical reason enters the picture too early—or so I shall argue—by serving as a criterion for the identification of a position as positivist or antipositivist. Letting the details for later on, the idea I intend to take issue with roughly is that explaining— affirmatively or dismissively—the role of morality in the determination of legal content is THE task to be accomplished by legal philosophers precisely because THE stake for legal philosophy is whether the legal positivist or the antipositivist should win the argument in the end of the day.59 The thought I purport to convey as a reaction to how these two “camps” are deployed is that both sides prematurely assume that, irrespective of the issue of this battle, moral facts methodologically piggyback on legal facts in the sense that if and however they have a role to play they do so by operating as complementary—along with social facts—grounds of legal facts.
Being aware that I may already be giving the impression of flirting with platitudes I set out to disclose the precise nature of my objection to this picture. As briefly hinted above, my objection is methodological, not substantive. That is to say, I do not purport to question the value of asking if and how morality is relevant for law nor do I intend to begin, at least, by
59 That being said I do not dismiss the importance of qualifying a victorious jurisprudential argument by appeal to how concisely it vindicates its positivist or antipositivist orientation. By the end of the first part of the thesis I shall also “succumb” to the challenge of taking a stance in this debate by defending an antipositivist interpretation of my metajurisprudential findings. This latter step, however, remains crucially different in terms of its methodological appeal to the relation between law and morality precisely because it accrues from a metaontological framework that resists treating law or legality as an ontological category that can figure in modal or explanatory relations to moral facts.
64 questioning the existence of legal facts. What I aim to question is the accuracy of the shared position that morality enters the picture by the route of what grounds legal facts. In this sense the relevance of morality is derivative of the main problem for legal philosophy which is the grounding of legal facts. Put in different words, even if most legal philosophers would be eager to welcome into their stratified ontology a category of legal facts superseding on more basic social and/or normative facts, the worry I am expressing would be as poignant as ever precisely because their convergence in treating the relevant dispute as one about the grounding of legal facts serves to obfuscate the divergent paths leading to this conclusion.
I.3. Relocating the Site of Theoretical Disagreement
Hopefully there is a way of preserving our identification of THE problem for legal philosophy as a problem of grounding without insisting that its proper object are legal facts nor that it can be solved without shouldering any metaontological burden. Consequently, my suggestion will not be to dismiss but to relegate legal facts from the side of the given to the side of what is asked while preserving the core intuition that theoretical disagreement about law is indeed a controversy over some type of grounding relation.
Moreover, I shall argue that this re-qualification of the grounding question can be carried out without depriving the participants to this debate of a
65 shared minimal platform that can enable meaningful disagreement. The reconfiguration I will propose will not be radical in terms of its literal content but it may be radical in terms of its logical entailments. More precisely, the platform I will introduce will feature as its new occupant the grounding of the truthmakers of legal propositions, thus pushing the existence of legal facts from the side of the given to the side of what is asked.
Evidently, the question of reconfiguring the site of jurisprudential disagreement comes before the re-evaluation of its scope. Provided that I can convince the reader that this platform is at least as hospitable as the one featuring legal facts, there will be sufficient reason to be more optimistic about taking up three challenges: (i) explain how we can benefit from allowing the scope of jurisprudential disagreement to include the metajurisprudential question about how the legal philosopher should argue about matters of ontological commitment, (ii) proceed with reframing the division of opinion vis-à-vis the alternative site of disagreement as the
“grounding question about law”, (iii) come up with a more substantive proposal in the light of this new conceptual scheme.
As already evidenced by my previous remarks, these three challenges cannot be properly addressed in the absence of an alternative platform or site of jurisprudential disagreement. The idea I have in mind is that instead of kicking off the debate by talking about legal facts and their grounds we could start at the conceptually prior level of true legal propositions and
66 their truthmakers. In other words, a revamped site of jurisprudential disagreement will feature the grounding of the truthmakers of legal propositions instead of the grounding of legal facts such that the only point of convergence among competing accounts of law will be the idea that legal propositions are made true by extra-propositional entities. In this way philosophers who are willing to affirm the truth-aptness of assertions of legal content but their parsimonious attitude towards higher-level entities— be they legal facts, statues, chairs or banknotes—dissuades them from taking on board the existence of legal facts can also meaningfully enter this reframed debate insofar as they can provide a plausible argument for the existence of truthmakers of legal propositions that are not structurally isomorphic to the latter.60
Whereas on a more standard approach controversy would be expected to flare up at the conceptually posterior moment at which we postulate legal facts as the truthmakers of legal propositions and inquire into the more basic facts that ground the former, the picture I am trying to introduce locates the inception of disagreement at a more fundamental level that is non-committal with regard to the existence of legal facts. In what follows I will be deliberately talking about the possibility of disagreement as I am in no position to ascribe to the major discussants an actual or implicit intention to disagree in the terms I am about to describe. From this point
60 In the last chapter of this part of the thesis (Ch. 5), I will try to make a plausible case about the eligibility of dispositional facts about enforceability for the role of the truthmakers of legal propositions.
67 onwards my way of engaging competing theories of law into discussion will be reconstructive and not exegetical. In other words I will not be assuming as my argument advances that the legal positivists and antipositivists whom
I will engage in virtual confrontation share an implicit or vague intention to subscribe to the alternative methodology I will be introducing.
What I aim to demonstrate instead is that there is a better and more informative way to make sense of the dispute that is actually transpiring whilst preserving a charitable reading of the combatting views. The articulation of the dispute can be reparsed in a better way in the sense that the abovementioned robustly modal terms in which the winning argument is supposed to be cast fail to capture—as I am about to argue—the underplayed convergence of available positivist and antipositivist theories with regard to their conception of ontological commitment. It is precisely in the light of this latent convergence that relocating the site of jurisprudential disagreement can also be more informative in the sense that it can show how the contested role of morality in law could be derivative of a grounding problem that is not transparent to the well-documented problem of the grounding of legal facts.
Before spelling out an alternative proposal about how to frame our metaphysical questions about law and hopefully to defend an alternative route I shall consume a few more textual space illustrating the intuition underpinning my proposal to consider the possibility of true legal propositions—instead of legal facts—as a point of departure for informative
68 disagreement. To see how controversy can erupt from such an innocuous premise I should remind that what reasonably ensues from the latter premise is the postulation of proper truthmakers for legal propositions. It is precisely this intermediate territory between the admission of truth- evaluable legal propositions and their truthmakers in which I am inclined to locate an incipient dispute that has not been properly articulated and which could eventually reset the stakes of what counts as a better route for tackling with our jurisprudential puzzles.
Given the reconstructive nature of this approach it should come as no surprise that in the dispute I will be elevating to the surface the major contestants—positivist and antipositivist alike—are positioned on the same side of defense whereas I am left with the awkward task of having to
“construct” a venerable opponent. Hopefully this should not come across as a self-defeating move as this is precisely the outcome that could allow me to take a step forward by showing that the standard way of articulating disagreement about law—in terms of the grounds of legal facts and the relevance of morality therein—serves to mute an informative convergence and, consequently, shift the locus of substantive disagreement in the wrong ballpark.
The distinction I am attempting to draw between (true) legal propositions and legal facts already points to the first strong premise I need to take on board if my ensuing exposition is worthy of making any sense at all. This is indeed a substantive premise as it points to a metaphysically committing
69 distinction between two types of entities, true propositions and facts. On this approach, legal truth is somehow responsive to how the world is without this implying that legal facts are fundamental in any metaphysically robust sense. That being said, I will refrain from taking on board a more committing theory of truth than what is entailed by an Equivalence
Principle of the form
⌈ ⌈ P ⌉ is true if and only if P ⌉
The above principle is stronger than a material Tarskian biconditional in the sense that it postulates the identity of its two sides either in terms of their meanings or in terms of the speech acts performed with them. More precisely, I shall adopt a propositionalist version of deflationism about truth61 such that instances of the equivalence schema are about propositions rather than sentences. On this deflationist variant P and the
61 It is a further question whether the endorsement of a deflationist account of legal truth is compatible with a truth-conditional account of the meaning of legal utterances. There are sonorous objections to combining a deflationist theory of truth with a truth-conditional account of meaning on the grounds that, instead of remaining silent about the deflationary character of meaning, deflationists are engaged in a circular attempt to explain truth in terms of meaning. For instance, on the propositionalist version of deflationism, the proposition that snow is white is true iff it means that snow is white, which is patently trivial as both sides of the equivalence schema feature propositions. This poses a dilemma in the sense that on pain of circularity deflationism cannot be combined with truth- conditional theories of meaning that invoke the notion of truth to explain meaning. A truth- conditional theory of meaning will be an account of what makes it the case that sentences of a natural language express particular propositions but, given that on the propositionalist version of deflationism the equivalence schema features propositions on both its sides, it is implausible to say that deflationism has also legitimate semantic aspirations. This is not a problem for someone who holds a propositionalist view of meaning precisely because in this case the meaning of a sentence is not exhausted by its truth conditions.
70 proposition that P is true trivially, necessarily and a priori entail each other.62 Later on I will argue in favor of a fully developed legal instance of the equivalence schema to which I shall attribute the following form:
The proposition that the proposition that it is obligatory to φ is a legal norm/part of the content of the law of S is true if and only if the proposition that it is obligatory to φ constitutes a legal norm/part of the content of the law of S
As I intend to explain further downstream, the expression ‘the proposition that it is obligatory to φ’ is a dummy sortal construction that can be replaced by whichever referent jurisprudential theory yields as correct such that, if Joseph Raz’s account of authoritative directives is correct, the proposition that the proposition that it is obligatory to φ is a legal norm/part of the content of the law of S will be true if and only if an authoritative directive to φ constitutes a legal norm of S. Respectively, if Mark
Greenberg’s account of moral impact is correct, the proposition that the proposition that it is obligatory to φ is a legal norm/part of the content of
62 For this interpretation of the propositional truth predicate see Scott Soames, ‘Understanding Deflationism’ in Philosophical Perspectives (2003) 17 (1):369–383. Soames remarks that on a deflationary account of truth defining the truth predicate is not an indispensable task. As he notes, ‘[i]t is no part of deflationism that the truth predicate must be definable. Consequently, it would be expecting too much to demand that deflationists provide a synonym for the truth predicate, or identified the proposition expressed by the sentence the proposition that S is true with the proposition expressed by some other sentence in which the word true doesn’t occur. Some deflationists may think that truth can be defined, but not all do, and it is not an essential part of the deflationary position.’ (ibid, p. 372).
71 the law of S will be true if and only if the fact that it is obligatory to φ constitutes a legal obligation to φ in S.
In light of these minimal commitments it is important to notice that we should not infer therefrom that truthmaking theories are not a priori compatible with more robust accounts of truth such as the family of views described as correspondence theories.63 The reason rather is that correspondence theories, if not properly constrained by extra-linguistic considerations, tend to favor the type of structural isomorphism between propositions and facts that the variant of the truthmaker view of ontological commitment I have taken on board purports to reject.64 At the first-order
63 The only substantive exclusion that this minimal account of truth supports regards any version of the identity theory of truth according to which the truth of truth-bearers (e.g. propositions) is identical to a truthmaker (e.g. facts or states of affairs). An identity theory of legal truth is an available specification of one’s legitimate espousal of an identity theory of truth simpliciter such that the truth of a legal proposition consists in its identity with a legal fact. On this approach true legal propositions and legal facts are one and the same kind of entity! For the view that truthmaking theories are compatible with a deflationist account of truth see David Lewis, ‘Truthmaking and Difference-Making’ in Noûs (2001) 35 (4): 602–15, at 603-5 and Jamin Assay, ‘Against Truth’ in Erkenntnis (2014) 79 (1):147-164. For an overview of the ramifications entailed by combining truthmaking with a correspondence theory of truth see Marian David, ‘Truth-Making and Correspondence’ in E.J. Lowe and A. Rami (eds.), Truth and Truth-Making, Stocksfield: Acumen, 2009, pp. 137- 57. 64 The broad picture I am alluding to is the result of combining a neo-classical account of truth as correspondence with an account of truth-bearers (propositions) as structured entities. On this picture, correspondence would hold between a proposition and a fact when the proposition and the corresponding fact have the same structure, and the same constituents. Whereas this combined view is compatible with some versions of the truthmaker project it cannot support the metaontological position that disassociates the ontological commitments of a theory from the structural resemblance between the
72 level a truthmaker theorist may opt for a correspondence theory of truth such that the truthmaker for P just is the portion of reality that P corresponds to. If this route is taken a truthmaker theorist who is also a classical correspondence theorist will be naturally led to espouse an isomorphic truthmaker view of ontological commitment such that the ontologically committing facts that make a theory’s propositions true also mirror the structure of the theory’s propositions.65 By contrast, on the propositions of a theory and the facts that make them true. The reason is that despite the obvious affinity between correspondence theories and the truthmaker project their explanatory targets diverge. The former aim to provide a definitional account of truth (“what is truth?”), whereas the latter purports to provide a constitutive account of what type of worldly entities truthmakers are (“what are truthmakers?”). D.H. Mellor also defends the more modest view I have taken on board noting that truthmaker theorists need only an equivalence principle of the form “〈P〉 is true if and only if P” as the minimal content of an account of truth that is compatible with an account of truthmaking. In his words, ‘truthmaker theorists need not take any true proposition 〈P〉 to entail the existence of a specific truthmaker S. The entailment here, if any, goes the other way, from 〈S exists〉 to 〈P〉. So the problem here is not for truthmaking but for Quine’s criterion of ontological commitment…This is why parties to ontological disputes need more than (EP) to link what there is, and how it is, to what is true. They need theories of truthmakers—not of what truthmakers are, but of what truthmakers exist’(D.H. Mellor, ‘Truthmakers for What?’ in Heather Dyke (ed.), From Truth to Reality: New Essays in Logic and Metaphysics, New York: Routledge, 2009, pp. 272-303,at 276-7). 65Adolf Rami provides an informative description of how friends of truthmaking can position themselves vis-à-vis the definitional question about whether and how truth corresponds to reality. He writes, ‘a truth-maker theorist may or may not take the truth-maker relation to be an isomorphic (one-to-one) relation. Someone who holds the first view can therefore be called a truth-maker isomorphist. Truth-maker anti-isomorphism typically has the form that the truth-maker relation is regarded to be a many-to-many relation. That is, different truths may have the same truth-maker and one and the same truth may have different truth- makers. Truth-maker isomorphism holds that there are no two different truths that have the same truth-maker and that no two different truth-makers make the same truth-bearer true. Truth-maker isomorphism seems to be an unwelcome position insofar as it threatens
73 version of truthmaker theory I intend to take on board66 the truthmaker relation is a many-to-many relation such that different truths may have the same truthmaker and one and the same truth may have different
to trivialize a truth-maker theory, because it intuitively seems to be an easy and trivial matter to postulate for each truth that p an exclusive truth-maker by means of the fact that p.’ (Adolf Rami, ‘Introduction: Truth and Truth-Making’ in E.J. Lowe and A. Rami (eds.), Truth and Truth-Making, supra note 8, pp. 1-36, at 9). For a defence of truthmaker isomorphism see David Armstrong, A World of States of Affairs, Cambridge: Cambridge University Press, 1997, pp. 129-30 and Trenton Merricks, Truth and Ontology, Oxford: Clarendon Press, 2006, p. 4. 66 A major representative of this anti-isomorphist view is John Heil. Heil critically refers to this isomorphist understanding of the relation between truth and reality as the ‘Picture Theory’ noting that, on this view, ‘the character of reality can be ‘read off’ our linguistic representations of reality—or our suitably regimented linguistic representations of reality. A corollary of the Picture Theory is the idea that to every meaningful predicate there corresponds a property. If, like me, you think that properties (if they exist) must be mind independent, if, that is, you are ontologically serious about properties, you will find unappealing the idea that we can discover the properties by scrutinizing features of our language. This is so, I shall argue, even for those predicates concerning which we are avowed ‘realists’.’ (J. Heil, From an Ontological Point of View, Oxford: Clarendon Press, 2003, p. 6). Another proponent of the same theoretical framework is Ross Cameron who claims that ‘[t]he point is simply that the explanation of the truth of the proposition
doesn’t in general stop at it being the case that p, so it’s false to claim that whenever a proposition is true it’s true in virtue of the world being as the proposition says it is. The features of the world that do the explaining – and hence the portion of the world that the truth corresponds to – will often lie at a deeper level.’ (R. Cameron, ‘Truthmakers, Realism and Ontology’ in Robin LePoidevin (ed.), Being: Contemporary Developments in Metaphysics in Royal Institute of Philosophy Supplement (2008) 62: 107-128, at 123). In a similar vein, Heather Dyke notes that ‘it can often be the case that F-sentences are objectively true, have a descriptive function, and are non-paraphrasable but the truth of F- sentences does not consist in their correspondence to facts about the existence of Fs, for the truthmaker need not ‘involve the existence of the entities apparently referred to by
74 truthmakers. In other words, on this alternative view truthmaking does not presuppose any structural isomorphism between propositions and facts.67
Hopefully I do not believe that I have to adduce extensive evidence in support of my first substantive premise as it is plausible enough to assume that I can have the majority of legal philosophers of a cognitivist persuasion on my side at least with regard to the espousal of an equivalence principle of the form
is true iff P. It will be a further question whether the
Tarskian metalanguage can be Ontologese—that is to say, an ontologically terms in the sentence’ (H. Dyke, Metaphysics and the Representational Fallacy, New York: Routledge, 2008, p. 4). 67 It is important to notice that despite their surface similarity correspondence theories of truth and truthmaking theories are categorially distinct. D.H. Mellor aptly flags this distinction when he notes that ‘[t]aking truthmaking to relate a true proposition 〈P〉 to a generally nonpropositional entity S may make theories of truthmaking look like correspondence theories of truth. But they are not. Theories of truth tell us, rightly or wrongly, what it is for a proposition 〈P〉 to be true, which need no more tell us what makes 〈P〉 true than saying what it is to be a prime minister (to head a government) tells us what makes someone a prime minister (commanding a parliamentary majority). And as with prime ministers, so with truth; and what truthmaker theories aim to tell us is what makes propositions true, not what it is for them to be true.’ (D.H. Mellor, ‘Truthmakers for What?’, in Heather Dyke (ed.), From Truth to Reality: New Essays in Logic and Metaphysics, New York: Routledge, 2009, pp. 272-303, at 274). This distinction is crucially important for the following reason: it is one thing to say that legal truth or the truth of a legal proposition consists in a legal proposition’s correspondence to a legal fact and another thing to say that a legal proposition is made true by a legal fact. Whereas legal propositionalism allows this distinction to collapse such that 〈P〉 is true if and only if it is made true by P, a truthmaker theorist will certainly wish to preserve this distinction precisely because she thinks that the entities figuring in the metalinguistic regimentation of an object language need not be the ones that also make P true. In other words, the truthmaker theorist will deny that any metalanguage can have authority with respect to what entities really or fundamentally exist.
75 authoritative metalanguage whose terms all carve perfectly at the world’s joints—or simply a logical regimentation of English. The reason for my optimism is that, even though there is no explicitly shared endorsement of any account of truth to be witnessed among competing theories of law, the almost universal talk of the grounds of legal facts is a first-class indication that the identification of true legal propositions with legal facts would garner minimal if any support within our discourse. To see why this must be the case one must recall that on any identity account of truth legal facts, in virtue of their being identical with true legal propositions, cannot be non- linguistic in nature.
This is not to deny that there are available neo-Fregean conceptions of facts68 on which the identity theorist can rely without being immediately prone to the objection of a necessary additional commitment to an identity theory of falsehood—even accounts of Fregean facts that treat them as worldly rather than linguistic entities. The problem that emerges specifically for the legal philosopher is that on their most plausible or unobjectionable construal identity accounts of truth must rely on a conception of facts as linguistic entities with concepts as their constituents.
But if that is the case it would be nonsensical to adhere to the—par excellence robustly metaphysical—notion of grounding in order to demarcate the boundaries of inquiry for the legal philosopher. Linguistic
68 For an overview of this family of theories see Matti Eklund, ‘Neo-Fregean Ontology’ in Philosophical Perspectives (2006) 20 (1): 95-121. For reasons of fairness I will nevertheless provide further downstream (Chapter 2, II.1.) a sketchy account of how a Neo-Fregean account of legal facts could proceed.
76 entities are more likely to stand in entailment relations rather than relations of grounding.
I.4. Reconsidering the Scope of Theoretical Disagreement
Granting that the above remarks about the plausibility of not rejecting a deflationary account of legal truth have a footing in the actual jurisprudential parlance about the grounding of legal facts, I am in a better position to return to my initial suggestion about adopting an alternative platform of discussion on which the question of the grounding of the truthmakers of legal propositions will figure as a more instructive guide to disagreement than legal facts. This is probably an opportune time to repeat that the methodological drift I am trying to defend will not be dismissive towards legal facts; that would be absurd, the least, given that all available theories of law69—positivist and antipositivist alike—take legal facts to be the obvious truthmakers of legal propositions. What I am about to defend is the modest claim that virtually any legal philosopher of a cognitivist persuasion would admit that legal propositions are truth-apt and that their truth is grounded in nonlinguistic entities.
The use I intend to make of this modest claim will be more extensive than its platitudinous appeal may suggest mainly because allowing the ascension
69 The universal quantifier in this statement needs to be qualified as I am only referring to theories of law that adhere to a cognitivist account of legal truth. In that sense, non- descriptive or expressivist theories of law will remain untouched by the following exposition.
77 of the site of jurisprudential disagreement from the level of the grounding of legal facts to the level of the grounding of the truthmakers of legal propositions can affect the scope of the relevant disagreement in two distinct ways. First, by dragging legal facts out of the domain of the given and allowing the concept of truthmaker to fill in the gap, the scope of our disagreement is apt for hosting metatheoretical inquiry. This is to say that it becomes an open question not just what the legal philosopher’s ontological commitments should be—to legal or non-legal facts as the truthmakers of legal propositions—but also what the standards of appraising an account of ontological commitment to this or that candidate truthmaker as explanatorily promising or not are. The latter is a metaontological question which given its local focus can be further specified as metajurisprudential.
Second, by relocating the site of jurisprudential disagreement from the grounding of legal facts to the grounding of the truthmakers of legal propositions it becomes less obvious how the division of opinion vis-à-vis this grounding problem shapes up. In the following section I will give a brief introduction of how the grounding question about law can be recast in a way that reveals new divisions of opinion and informative alliances between competing theories of law.
At first approximation, the space I am alluding to seems quite narrow as standard appeals to legal facts as the truthmakers of legal propositions already assume that the layer separating the logical regimentation of language from how reality looks like is way too recalcitrant to epistemic
78 justification to merit separate scrutiny. But this is precisely the idea I want to challenge without depriving the discussion my account purports to spark from a platform of shared intuitions. Having assumed, for the sake of the argument, that the fact that for every legal truth there is something in the world that makes it true is a premise shared by all legal philosophers but those of an expressivist inclination70, my next step is to suggest that a first division of opinion occurs as early as one has taken on board legal propositions as truth-bearing.
I will use the term ‘legal propositionalism’ in order to refer to what I take to be an accurate reconstruction of a latent metajurisprudential view on what follows the admission of the possibility of truthmakers for legal propositions. This will be roughly the idea that insofar as we accept the
70 As I have noted at the beginning of this exposition, I do not intend to make a strong case for the relevance of metaethical expressivism for our understanding of the use of normative terms in a legal context. Nevertheless, a short comment on how the legal expressivist may account for the semantics of legal statements could be used contrastively with what I intend to defend in what follows. On an expressivist understanding of legal statements, the legal point of view denotes a sui generis mental state that partly accounts for the meaning of utterances of legal content Differently put, to understand what a legal utterance means is to understand what it is to have a peculiarly “legal” normative thought. Assuming that this is correct, there would be no further matter of fact about the normativity of law than what is suggested by an account of what it is to think that something is legally required. To the best of my knowledge Kevin Toh has propounded the most nuanced and elaborate account of what kind of attitudes (plural acceptance) are implicated in our legal thoughts and utterances. According to Toh an utterance of an (internal) legal statement is an expression of a conditional conative attitude by which the speaker displays his willingness to act in a particular way on the assumption that others have like or mirroring conditional commitments. See, Kevin Toh ‘Legal Judgments as Plural Acceptances of Norms’ in Leslie Green & Brian Leiter (eds.), Oxford Studies in the Philosophy of Law, Volume 1, Oxford: Oxford University Press, 2011, pp. 107-37.
79 possibility of legal truth we are ontologically committed to the obtaining of legal facts as the proper truthmakers of legal propositions. Legal facts, under this description, will be facts whose constituents are structurally isomorphic to the truth-conditional content of legal propositions. As I will clarify further below, I intend to present legal propositionalism as a metaontological rather than substantive thesis about the impact of legal truth on the legal philosopher’s ontological commitments which I will consequently associate with a specific set of substantive responses to what I have adumbrated as the grounding question about law.
As I hope to be able to demonstrate, venturing to describe such a comprehensive position in legal metaphysics as propositionalist is not driven by the ambition to add more complexity to the extant jurisprudential jargon. At this point I would even dare to claim that part, at least, of what explains the reluctance of non-legal philosophers to enlist current debates about the nature of law as a source of potentially formative contributions to the broader metaphysical discourse is precisely the fact that the debate in legal metaphysics is heavily dependent on an unnecessarily constraining terminology that either has no direct semantic counterparts in other fields of philosophical inquiry or has a radically different meaning than what is standardly associated with the use of similar terms in other domains.
In light of this caveat about inventing new terms my line of defense will be that despite the lack of a direct terminological counterpart in other philosophical domains the use of the term ‘legal propositionalism’ aims to
80 highlight the neglected affinity of debates in legal metaphysics with contemporary issues in general metaphysics. A point of caution is in order: by its very essence as a (reconstructed) metajurisprudential view of how to argue about the type of ontological commitment a cognitivist legal philosopher should be willing to shoulder, legal propositionalism is, literally speaking, an applied version of what is known in metametaphysics as the
Quinean or quantificational account of ontological commitment. Put in different terms, legal propositionalism will be presented as a second-order thesis about how the reality of law—as an abstract object, property or relation—is related to the truth-conditional content of legal utterances.71
In what follows I will give a very broad picture of what the metaontological question of ontological commitment is about and at a further point I will try to unpack what most plausibly lurks in the mind of the legal propositionalist. This step will be the most challenging one as I will try to show that what boggles the legal propositionalist is an ill-formed or sketchy reflection72 of a particular metaontological conception of ontological commitment. Granted that this reconstructive leap will eventually earn its legitimacy, I will be in a position to infuse the content of the legal propositionalist thesis with the proper amount of “ontologese” with a view
71 In this regard I will treat ‘legal propositionalism’ as the jurisprudential counterpart of what is more broadly described as a Quinean, quantificationalist or representationalist account of ontological commitment. 72 I deliberately talk about reflection instead of rendition or apprehension precisely because it would be absurd to assume that any legal philosopher is liable for consciously failing to utilize in her local quest tools imported from general metaphysics.
81 to showcasing its structural resemblance with the already familiar debate in metametaphysics about the methodology of doing ontology through the study of language, or as John Heil frames it, of ‘letting the linguistic tail wag the ontological dog’.73
As a first step I owe an explanation of how I purport to understand the quantificational or Quinean flavor I intend to attribute to legal propositionalism. What is commonly described in the metametaphysical discourse as a Quinean or quantificational metaontological thesis is epitomized by the claim that a discourse’s ontological commitments must be read off its sentences’ truth-conditions or, in alternative words, that we are entitled to accept those entities over which the sentences of our best theory quantify. This is a more canonical rendition of the Quinean dictum that “to be is to be the value of a variable” or, in its unpacked version, ‘[w]hat entities there are, from the point of view of a given language, depends on what positions are accessible to variables in that language’.74
As soon as we track the truth-conditions of a given theory’s sentences and succeed at regimenting sentential content in a proper metalanguage our sole remaining task, according to this view, is to see which objects in the world are eligible for satisfying the variables figuring in the truth- conditional rendition of the sentence(s). To illustrate the methodological
73 John Heil, From an Ontological Point of View, supra note 11, p. 189.
74 W.V.O. Quine, ‘A Logistical Approach to the Ontological Problem’ (originally published in Journal of Unified Science (1939) 9: 84-89), reprinted in The Ways of Paradox and Other Essays, revised edition, Harvard University Press, 1976, pp. 197–202, at 201.
82 impact of this approach, suppose the locution “there is a statue” is part of the inventory of sentences composing the theory T of what a specific room contains, call it Troom. This sentence can be aptly regimented into first-order classical logic as (∃ x) x = a where ‘a’ stands for the sortal term ‘statue’.
Consequently, on this picture, the metalinguistic translation (∃ x) x = a can only be true relative to a domain that contains a statue such that the truth of our theory about the room’s content is ontologically committed to the existence of a statue.
The picture described allows us to build ontology into semantics in the sense that a sentence’s truth-conditional meaning is at least indicative, if not dispositive, of what extra-linguistic entities there are. As one may reasonably expect, there has been an array of objections to different varieties of the same endeavor of linguisticizing ontology, or, as John Heil describes it, the attempt ‘to construe linguistic categories as legislating, rather than roughly reflecting, boundaries and divisions of the world’.75
Labeling this position as metaontological is a result of its non-committal stance towards what kind of entities should figure as the content of our best theory’s ontological commitments. All that it claims is that irrespective of what these entities—or properties, states of affairs, relations etc.—turn out to be as a result of our best available explanations, they must be somehow
75 John Heil, ‘Précis of From an Ontological Point of View’ in Giacomo Romano (ed.), Symposium on From an Ontological Point of View by John Heil in SWIF Philosophy of Mind Review (2007) 6(2), p. 12.
83 represented or reflected in the logical regimentation of the sentences we use in constructing a theory.
In a final move I will pose a challenge for legal propositionalism by critiquing its metaphysically refined version on the grounds that its favored metaontology is false. More precisely, I will subscribe to the view defended by philosophers of various first-order allegiances that a proposition featuring an entity X can be made true without us needing to admit Xs into our ontology; once we accept that our truthmakers need not be isomorphic to what is represented in the apt regimentation of our language,76 a new range of options makes itself available with regard to which things can qualify as the ultimate grounds of the non-isomorphic facts that make our
76 Ross Cameron describes this view as an instructive motto. He writes, ‘[i]t’s fine for you to admit that such things exist—just don’t think that they really exist; it’s fine for you to accept that claims about them are true (so there’s no need to paraphrase them away and make yourself hostage to linguistic fortune)—just don’t take those truths to be ontologically committing to the things they’re talking about.’(R. Cameron, ‘Truthmakers and Ontological Commitment: or how to deal with complex objects and mathematical ontology without getting into trouble’, in Philosophical Studies (2008) 140:1-18, at 14). On another occasion he supplements his view against the charge of being strategic about the ontological utility of quantification noting that ‘it is no part of the doctrine thus stated [the truthmaker view of ontological commitment] that the English ‘there is…’ is the most natural quantifier. As an ontological realist I am committed to saying that there is a possible language such that the true existence claims in that language correspond to the quantificational structure of the world— this is a language whose existence claims carve reality at its joints: one where you can truly and completely list your ontology by saying what there is. But I do not think English is such a language. The ontology of the world is what can be said to exist using the most natural quantifier; but if this is not the English ‘there is …’ then it might be the case that there are some things that are not amongst our ontology.’ (R. Cameron, ‘How To Have a Radically Minimal Ontology’ in Philosophical Studies (2010) 151(2): 249-64, at 256; see also R. Cameron, ‘Quantification, Naturalness and Ontology’ in Allan Hazlett (ed.), New Waves in Metaphysics, New York: Palgrave-Macmillan, 2010, pp. 8-26).
84 claims about the Xs true. The metaontological underpinning of this approach commonly known as the truthmaker view of ontological commitment is that a theory is ontologically committed to the entities fundamentally or really needed in the world for the propositions expressed by the sentences of that theory to be made true. Combined with the view that existential predications need not be ontologically committing to the entities they quantify over we are led to what Ross Cameron presents as a more fine-grained account of the truthmaker view. In his words,
‘The claim that some propositions of the form
77 R. Cameron, ‘Truthmakers and Ontological Commitment’, ibid, p. 17. Cameron appeals to Kit Fine’s distinction between what there is and what there really is (see his ‘The Question of Realism’ in Philosophers’ Imprint, (2001) 1 (2): 1-30) in order to steer the discussion about the implications of the truthmaker view of ontological commitment closer to explaining the ontological dispensability of complex objects. In Cameron’s words, it is plausible to assume that ‘a really (or, equivalently, fundamentally) exists iff we are ontologically committed to a, and that a exists, but doesn’t really exist (or, equivalently, that a exists derivatively), iff a exists is true but is made true by something other than a. The claim, then, is that complex objects exist but don’t really exist: what really exists are simply the simples. Complex objects don’t really exist—the nihilist was right about how the world is. But the nihilist, traditionally, thought this meant that sentences concerning complex objects couldn’t be literally true: at best they were assertable if they satisfied
85 If the constituents of the facts that make a proposition true—i.e. the truthmaking facts—need not be isomorphic to the constituents of the proposition itself, two important consequences follow: first, what our theory commits us to ontologically may not be pictured in what we represent as being true, and, second, the more fundamental facts—in our case, social and/or normative facts—that will operate as the grounds of the truthmaking facts may be radically different in terms of their constituents vis-à-vis the some subsidiary norm. She was wrong: all it takes for those sentences to be true—literally true—is for there to be the simples.’ (ibid, p. 6). On this account of ontological commitment ontological commitments just are fundamentality commitments. This is precisely the view I plan to take on board in this exposition. A competing view is espoused by Jonathan Schaffer (see his ‘Truthmaker Commitments’ in Philosophical Studies (2008) 141 (1): 7-19). According to Schaffer’s account of ontological commitment there are two varieties of commitment only one of which is, literally speaking, an instance of ontological commitment. The first variety refers to what a theory says that exists (existential or quantifier commitments) and the second variety refers to what a theory takes to be fundamental (fundamentality commitments). Whereas on Cameron’s view, ontological commitment amounts to being committed to what fundamentally or really exists—as opposed to what exists derivatively or de dicto—, Schaffer prefers to disassociate adverbial qualifications of existence from existence proper noting that only the latter serves as the proper object of ontological commitment. I am not entirely convinced that this disagreement about the definition of ontological commitment is not merely verbal. At any rate, I am willing to acknowledge that my critical appraisal of legal propositionalism crucially depends on an understanding of ontological commitment in terms of fundamentality commitments. If the latter association proves incorrect, my criticism will have a less sweeping effect than initially aspired. In other words, I will have to readjust my claim as a claim about truthmaking rather than about the existential commitments entailed by a proper account of truthmaking. On this readjusted picture, whereas the truth of legal propositions “benignly” commits us to the existence of legal entities like legal norms or legal obligations, it is not grounded in the existence of these entities but in facts that do not feature these entities among their constituents. The latter facts will then be taken to be the “proper” truthmakers of legal propositions thus disqualifying legal entities from operating as something more than objects of existential commitment.
86 grounds that would be postulated had we embraced an isomorphism between propositional content and truthmakers.
The jurisprudential implications of this alternative conception of ontological commitment can be quite remarkable. Replacing the X variable with a logically regimented variable standing for legality—be it a predicate, singular term or definite description—can eloquently reveal the plan behind this project. My relevant claim will be that one can coherently assert that legal propositions are literally true but that legal facts qua their purported truthmakers are not part of our ontological commitments and, hence, do not exist. Put even more bluntly, the upshot will be that even though we can make literally true assertions about what THE LAW requires, the bits and parts of reality to which we should revert in order to vindicate the truth of our assertions are not “made of” LAW nor are they legal in any metaphysically robust sense (property, relation or abstract object).
Whereas I am fully aware that this is a rather strong statement to make this is not a statement that I will allow to “contaminate” my premises as I will be devoting a considerable amount of arguing space for alternative paths until the very end. The picture I hope to come up with by the end of this exposition is not meant to diffuse the controversy over the grounds of law as a red herring; what my re-descriptive approach, so to speak, purports to do instead is to re-graft it into an alternative conceptual frame and also allow its enrichment with a new proposal that ultimately lends support to the antipositivist side of this conflict.
87 Throughout this exposition I will be preserving my faith in the fruitfulness of this re-description in the hope that its plausibility will become more visible as I will be moving from more to less modest premises. More precisely, what I hope to be able to render more visible is the possibility that we may have been roaming about in the periphery rather than the core of the problem and that what is primarily responsible for this circular drift is our choice of legal facts as our signposts. As already noted I will attempt to infuse this claim with some more substantive content by attaching this standard way of signposting to what I believe to be an erroneous metaontological view of ontological commitment. In the end what I hope to have gained by inviting the reader’s attention is to offer an alternative route to the ultimate grounds of law by refuting the widely shared ontological commitment to the reality of legal facts on metaontological rather than substantive grounds.
The jurisprudential payoff of this long digression into the realm of metametaphysics will hopefully become visible at the moment we realize that legal propositionalism is a deep-rooted, unarticulated and certainly not irreproachable view of what ontological commitments the legal philosopher should derive from her acceptance of the possibility of legal truth. The alternative idea that will come out of the rejection of legal propositionalism will be that part of what could explain the slow pace at which the positivism-antipositivism debate is moving beyond the traditional conceptual jargon of 20th century analytic jurisprudence is the fact that we
88 may have been blind to the possibility that our quest for the ultimate grounds of law could have been taking place under the veil of a misguided view of ontological commitment.
My final proposal will venture nothing like delivering a final blow to the well-cherished divide between legal positivism and legal antipositivism. On the new picture I wish to draw both sides will remain welcome at a price that, presumably, is not difficult or unwise to afford. The price I am offering includes the rejection of the “linguistic” or “quantificational” approach78 to ontological commitment and the espousal of the “truthmaker” approach. My belief is that the gain from paying this price is visible both for positivists and antipositivists. Moreover, the alternative conceptual frame I will be defending does not by itself vindicate the antipositivist voices in our relevant discourse. The antipositivist route towards which I intend to steer my substantive proposal on the grounds of law is merely enabled by the refutation of legal propositionalism but that equally applies for the legal positivist. This is to say that a legal positivist who is willing to rethink her metajurisprudential view in the light of the truthmaker account I will be arguing for can also avail herself of the “disembarrassing”, so to speak, effect of endorsing an account of ontological commitment that stands for the decoupling between the truth-conditions of a theory’s sentences and the truthmakers of the propositions these sentences express.
78 As already noted, for illustrative purposes I will be referring to the jurisprudential variant of this approach as ‘legal propositionalism’.
89 For the positivist, my guess is that a possible gain would be an easier route for solving what Scott Shapiro describes as the “chicken-egg” problem or, in theoretically proper prose, the “possibility puzzle”. This is a problem related with the very possibility of legal authority or the authority to create legal norms which in Shapiro’s own words boils down to the fact
‘that any body with power to create legal norms must derive its power from some norm, while any norm that could confer such a power must itself be created by someone with the power to do so’.79 As it stands, the puzzle seems to admit of two possible solutions: either we postulate the existence of a type of authority that is not conferred by a legal norm, or we come up with a category of power-conferring norms that are not instances of the exercise of legal authority. This puzzle poses a particular challenge for the legal positivist as no matter which path to its solution one chooses to take she will ultimately have to take on board the normative concept of power or authority exemplified either through the concept of a power-conferring norm or by the notion of the capacity of individuals or roles to change the normative position of others.
The interesting feature that both explanatory paths share is their reductive orientation. On the first option legal power-conferring norms are reducible to instances of an extra-legal authority—moral, rational or institutional—whereas on the second option legal power conferring norms are ultimately reducible to social norms that can be established by
79 Scott Shapiro, Legality, Cambridge MA: Harvard University Press, 2011, p. 42.
90 reference to social practice or a pattern of collective rationality. The basic intuition that underlies this approach is that at some fundamental level some paraphrasing becomes inevitable. That it is to say, L-talk (talk about legal concepts) must be replaced by R-talk (talk about the reduction base concepts) such that either instead of talking about legal authority we should be talking about moral or rational authority or instead of talking about the fundamental legal power-conferring norms we should be talking about, say, the rule of recognition or the master plan of a social system. In this vein the concept of reductionism is the idea that certain things are nothing but certain other sorts of things. Reductionism, then, leads to a peculiar form of the identity relation such that As can be reduced to Bs, if As are nothing but
Bs.
The truthmaker approach to ontological commitment offers a simpler solution that obviates the need to settle the conceptual matter of whether L- talk is linguistically replaceable by R-talk. Whereas the latter reductive response to the possibility puzzle is not immune to a series of criticisms like the objection of talking past each other, the argument from multiple realizability and intensional arguments about the semantics of referentially opaque terms, there should be no question that it is at least conceivable that L-statements (if they are true) are made true by R-facts (and not by L- facts). The latter approach shoulders no conceptual commitments vis-à-vis the relation between, for instance, the concept of legal authority and the rule of recognition, or the concept of a legal norm and the concept of a
91 social plan. By bypassing the postulation of L-facts while preserving the truth-aptness of L-talk the legal positivist is in a better position to guard herself against dubious translations of normative concepts in terms of descriptive ones without giving up her core intuition that the normative flavor of L-talk is not transmitted to its grounds.
As for the legal antipositivist the prospect of rejecting legal propositionalism in favor of the truthmaker approach is visibly promising. If the legal positivist’s challenge is to make a plausible case about the way in which descriptively identified legal practices explain the obtaining of legal obligations and rights, the challenge for the legal antipositivist is more fundamental as it regards the identification of legal practices as such.
Whereas an antipositivist’s espousal of normative facts as co-determinants of legal content is in a better position to explain how legal obligations and rights are generated by virtue of facts about the sayings, doings or thoughts of legal officials, it remains a question whether the antipositivist can provide a non-circular identity account of legal practices. The difficulty stems from the fact that many practices that qualify as legal by means of sociological classification or empirical inquiry are so morally objectionable that it is hard to explain how an antipositivist account can treat them as part of her theory’s input. This remark is as trivial as the perennial disjunction between legal positivism and antipositivism and as such it falls short of showing why declining to derive one’s ontological commitments
92 from the truth-conditional content of legal propositions brings the legal antipositivist closer to a non-circular account of legal practices.
To see how shifting one’s metaontological viewpoint may allow a breakthrough in thought I suggest that we take a fresh look at the prominent role assigned to the notion of normative defect in the antipositivist explanatory route from what the law ought to be to what the law is. A brief digression to two alternative ways of utilizing the notion of defect as an argumentative device can show how this works. On the one hand, for the traditional natural law theorist the property of being defective is commonly ascribed to legal norms qua generic entities.80 As such it can purportedly account for instances where a bad law is still law but defective qua law. On the other hand, it is more common for interpretivist or moral impact theories of law to associate the property of defectiveness with legal practices or legal systems respectively. A legal interpretivist, for instance, will argue that legal practices are at least in part identifiable by reference to their normative point, the latter being about the best justification of state coercion or, more generally, some form of principled consistency with past
80 Jurisprudential references to the notion of normative defect are not always literal. For instance, the first chapter of his book Natural Law and Natural Rights John Finnis argues that law should be understood the point of view of someone possessed of practical reasonableness noting that this normative viewpoint determines the focal meaning or central case of law. Focal instances of law just are non-defective instances of law; see his Natural Law and Natural Rights, second edition, Oxford: Oxford University Press, 2011, especially pp. 3-22. For an overview of direct appeals to the notion of normative defect see Mark C. Murphy, ‘The Explanatory Role of the Weak Natural Law Thesis’ in Wil Waluchow and Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law, Oxford: Oxford University Press, 2013, p. 3-21.
93 political practice; hence, an authority-claiming practice that fails to justify the use of its coercive means counts as defective under the relevant description. Similarly, a moral impact theorist will argue that a legal system is defective to the extent that it fails to ‘operate by arranging matters in such a way as to reliably ensure that its legal obligations are all-things- considered morally binding’81.
What is interesting, regardless of which entity an antipositivist chooses to predicate defectiveness, is that on either approach—the norm-based or the legal system-based—defectiveness is treated as an essential property of an abstract object, be it a legal norm or a comprehensive legal system. As such it remains vulnerable to an array of plausible anti-essentialist arguments a legal positivist can advance, the strongest one, perhaps, being the idea that this approach unwarrantedly discards as explanatorily irrelevant numerous regimes, historical and actual, that could be easily characterized as morally wicked or unjust. By legitimizing talk of abstract objects without legitimizing the further step of being ontologically committed to such objects, the truthmaker approach can render the attribution of the property of defectiveness purposeless as there will be no real abstract object in the world to which the said property can be attached. Differently put, upon reflection it could turn out that it is metaphysically superfluous to try to draw distinctions between defective and non-defective legal norms or
81 Mark Greenberg, ‘The Standard Picture and Its Discontents’ in L. Green and B. Leiter (eds.), Oxford Studies in Philosophy of Law, Volume. I, New York: Oxford University Press, 2011, p. 39-106, at 84.
94 systems precisely because allowing into one’s set of ontological commitments the existence of legal norms or legal systems is no addition to being in any robust sense.
So how could the rejection of legal propositionalism in favor of the truthmaker approach pay off for the antipositivist? One plausible idea would be the one foreshadowed above about the explanatory role of defect in different varieties of antipositivist theories of law. Granted that the truthmaker view would make the attribution of defectiveness to legal norms or legal systems ontologically superfluous, it could be the case that what is eligible for attributions of defectiveness is the performance of a role of some sort rather than an abstract creation. The analogy I am alluding to is provided by familiar instances of aesthetic or more generally normative judgments about works of art. A proponent of the truthmaker view of ontological commitment has no reason to hesitate to render judgment about the crudeness of a statue or the vivacity of a musical composition without, nonetheless, having to acknowledge the existence of statues or musical works in any ontologically robust sense. Her mode of engaging in evaluative talk about statues and musical works involves a full embracement of the truth-aptness of her corresponding claims qualified by the admission of truthmaking facts about the performance of the sculptor or the musician.
By employing this analogy, the legal antipositivist who decides to leave behind legal propositionalism in favor of the truthmaker view will assume a better position in combating the positivist criticism that her account is
95 counter-intuitively under-inclusive vis-à-vis the type of practices that qualify as legal. By withdrawing her ontological commitment to legal norms or legal systems she is better off guarding herself against the positivist platitudes that in the end of the day the Nazi regime was a legal system or that Nazi directives were legally valid norms. Her line of defense can be that the truth of claims of the form ‘Nazi directives are laws’ or ‘the Nazi regime is a legal system’ depends on facts that do not feature legal norms or legal systems as their constituents precisely because these entities simply do not exist.
Conversely, such statements will be true only to the extent that the performance of participants in the relevant practice exceeds a qualitative threshold of some sort.
On this occasion, the espousal of the truthmaker view actually results in legitimizing the decoupling of the role of legal practices from the social norms that purport to define it by allowing the former to become a purely normative concept that is not reducible to the conventional arrangements used to realize it. Consequently, a legal practice will be identified and evaluated as such by reference to the normative standards of performance associated with the role of its officials rather than to the constitutive norms that purport to define this role. The normative intuitions of the antipositivist can acquire more vigor precisely because constitutive norms cannot figure in the facts that make our corresponding claims true for the simple reason that any ontological commitment to abstract creations is the result of linguistic fallacy. This becomes a plausible option insofar as the legal
96 antipositivist can convincingly argue that as opposed to norms normative standards or principles are not the output of a mind’s creative initiative but are mind-independent abstract objects.
I.5. Re-mapping the Division of Opinion
In the previous sections I have argued that the site of theoretical disagreement about law can be reconfigured in a way that allows the extension of the scope of our disagreement to questions that pertain to the foundations of analytic jurisprudence rather than to the foundations or grounds of law. The subject matter of jurisprudential disagreement has been garnished with a tinge of abstraction so that instead of the grounds of legal facts our quest is re-directed to the discovery of the grounds of the truthmakers of legal propositions. This reparsing has not been without consequences as it has become less objectionable to stretch the scope of our disagreement to the question of which model of ontological commitment can best serve the legal philosopher’s pursuit of better answers. The extension of the scope of theoretical disagreement about law serves to portray the juxtaposition of two radically different views of ontological commitment. In the service of preserving familiarity with our local vocabulary I have coined the term ‘legal propositionalism’ in order to describe an applied version of what is known in metaontological discourse as the quantificational account of ontological commitment. My choice to
97 present legal propositionalism as an implicit mindset that pervades the positivist-antipositivist spectrum serves to animate and compound the contrast we see emerging the moment we realize that there are strong counterarguments to this way of doing ontology.
My argument has so far been streamlined to glide from the reconfiguration of the site to the extension of the scope of theoretical disagreement about law. In this manner I have tried to show how settling the question of what the object of our disagreement is can have a crucial impact on how far we allow ourselves to navigate this controversy. But this is a two-sided experiment, or so I shall argue. There is also the opposite aspect of how lifting the level of our foundational questions can affect the way in which participants to the relevant disagreement are divided.
Differently put, as soon as we permit a more abstract formulation of the site of jurisprudential disagreement it becomes an open question whether the traditional positivist-antipositivist divide can adequately capture the ambit of our dissension.
In what follows I will give an overview of what I take to be the reverse effect of relocating the site of our disagreement from the level of what grounds legal facts to the level of what grounds the truthmakers of legal propositions. The effect of looking back to the anatomy of our disagreement will not be any less profound than the effect of having grafted a new identity to our disagreement. By way of signposting it will suffice for now to say that on the emerging picture any taxonomy based on slicing up the continuum
98 from exclusive positivism to traditional natural law theories will be a poor guide to understanding what is really transpiring in the exchange of arguments and counterarguments between legal philosophers. More precisely, in the new scheme I aim to present traditional taxonomies will not lose their relevance but they will be more accurately anchored to a first- order level of discourse in the likeness of taxonomies employed to demarcate competing theories in normative ethics.
As a result of this sorting it will become more visible that the slots for our metajurisprudential contestants have been left void all along. Whereas metaethics has procured its own criteria for re-mapping ethical theories at a higher level of abstraction such that it is intelligible to classify an ethical theorist as utilitarian and moral realist, or as deontologist and moral constructivist, it remains awkward, perhaps even outlandish, to attempt to classify theories of law at a level above the familiar labels of positivism, antipositivism and their accompanying tags. By simply allowing a more abstract configuration of the site of jurisprudential disagreement a metajurisprudential taxonomy that supervenes on the traditional lines of division can be made available. This addition is not motivated by a fetishistic adoration of ascending levels of abstraction but comes about as a necessary supplement in the service of making unpronounced convergences and divergences more salient. A hint of what the possible upshot can look like is that from a purely metajurisprudential perspective it turns out that a theory as antipositivist as Dworkin’s interpretivism has more in common
99 with Shapiro’s planning theory of law than with Greenberg’s moral impact theory.
I.5.1. Logical Form and Truth Conditions of Legal Propositions
Bestowing visibility to the contrast between legal propositionalism and the truthmaker view serves among others the purpose of showing how loyal legal philosophers of a cognitivist persuasion have been to the representational capacity of the logical regimentation of our language.
Their unanimous acceptance of legal facts as the trivial truthmakers of legal propositions is the strongest evidence of how common it is to move from talk about law to postulating facts that feature law as their constituent.
Nonetheless, because this loyalty has remained unpronounced its concomitant duties have also remained unattended. What I intend to covey by this figure of speech is the thought that simply embracing legal facts into one’s ontological inventory without bothering to be more precise about the structure of these facts and more precisely about the ontological category under which law or legality figures therein is half the way to making good of one’s claim that legal truth is ontologically committing to the obtaining of
100 legal facts. To the extent that legal facts are supposed to mirror the content of the truth conditions of legal propositions, a conscientious legal propositionalist must be in a position to cash out her analysis in two steps: first, by providing an elaborated account of what these truth conditions are and second, explain the structure of legal facts in terms of the structure of these truth conditions.
Consequently, if, for instance, the correct logical regimentation of legal sentences yields a monadic predicate as the semantic interpretation of legality the corresponding truthmaking fact has to be such that it features legality as a monadic property of actions (or omissions)—as in “the ability to
φ is legal” or “not φ-ing is illegal. Likewise, if legality’s semantic interpretation is a relational predicate (like being legally obligated) or a singular term (as in the atomic expression “a legal norm of S” or the holistic expression “the content of the law of S”), legal facts should turn out to be facts about the obtaining of relations of legal obligation, permission, prohibition and empowerment, or facts about the existence of individual legal norms. Finally, it could turn out that legality’s semantic role is that of a propositional operator such that whenever it interacts with deontic operators like ought, must or may it modifies the quantificational semantic contribution of the deontic modals by way of ideally ordering the worlds over which the latter quantify. In the latter case, legality’s semantic value would be that of a sortal entity (kind) such that a corresponding legal fact
101 must feature legality as a source of normative requirements as in “the LAW of S requires that everyone φ’s”.
In light of these remarks about the alternative routes from the semantics of legal propositions to the structure of legal facts there are two classes of issue I need to address before spelling out the precise focus of my semantic digression. The first issue is about how I intend to refer to the notions of logical form and truth conditions in paving the path from legal propositions to legal facts. The second issue is about the further semantic commitments the legal cognitivist eventually has to shoulder if she wishes to deliver a complete picture of the truth conditions of legal propositions.
A. Logical Regimentation
Despite the ease with which scholars switch from talk of legal propositions to talk of legal facts there is scarce, if any, evidence that there is any consensus as to whether the structural isomorphism between legal propositions and legal facts consists in a predicate-to-property, a singular term-to-abstract object or an operator-to-normative source correspondence.
Granted that this transition from actual assertions of legal content to the reality of legal facts has not been sufficiently explored, I will take the liberty of allowing an extensive digression into the logical regimentation that determines the truth-conditions of legal statements. By logical regimentation I purport to understand the use of some canonical notation as
102 a semi-formal language that can bring out the underlying structure or logical form as it is commonly described of natural language sentences about legal content. In particular, this metalinguistic regimentation aims to make explicit the extent to which propositional structure diverges from grammatical structure by way of pinpointing which quantifiers occur in legal statements and what their scope is, that is the type of variables intended to range over the parts of constituents of the propositions expressed by a legal statement.
The logical form of natural language legal statements will correspond to a formal representation of their logical structure that purports to translate them such that the logical form of a legal statement L will be determined by the semantic category of the lexical items figuring in L and their compositional relations. Consequently, the logical combination of these regimented items can determine the interpretation of L, that is, its truth conditions. On a broadly truth-conditional account of meaning a legal proposition will be true or false depending on what states of affairs obtain in the world. This, of course, implies nothing about the verification of the truth or falsity of these propositions; all we need to know in order to be semantically competent in our legal assertions is what the world would have to look like for the sentence at a context to be true and not what the world actually is like.
103 In the course of this exposition I will adopt a Neo-Russellian view82 of propositions as structured entities not because a possible worlds account of propositions fails to deliver the semantic distinctions I purport to make with regard to the use of ‘legality’ but because it allows a more fine-grained individuation of what is supposed to be made true at the level of metaphysics. More precisely, I will assume that sentences express propositions endowed with structure such that the semantic values of lexical items or more complex linguistic expressions occurring in a sentence just are the constituent parts of the propositions expressed by the sentence.
This amounts to a propositional account of meaning that permits the recovery of the truth values of subsentential items from the constituent parts composing the proposition expressed by a sentence. Consequently, a sentence like “In S one legally ought to φ” will be treated as expressing a proposition composed of parts or constituents that are the semantic values of words or subsentential linguistic expressions occurring in the sentence.
82 This view has been extensively defended by philosophers like Nathan Salmon and Scott Soames (cf. respectively their seminal papers ‘Reflexivity’ in Notre Dame Journal of Formal Logic, (1986) 27(3): 401–429 and ‘Direct Reference, Propositional Attitudes and Semantic Content’ in Philosophical Topics (1987) 15: 47–87. Despite differences of detail, both theorists argue that necessarily equivalent sentences may express numerically distinct propositions, and that the semantic values of lexical items in a sentence are derivable from the proposition it expresses. Further down this theoretical path, Jeffrey King has contributed a thorough account of the unity of structured propositions. According to his proposal, structured propositions get their truth conditions in virtue of the fact that the syntactic relation R between, say, a name and a property as in ‘Dara swims’ is interpreted by English speakers as encoding the ascription of the property of swimming to a particular individual. (cf. Jeffrey King, ‘Questions of Unity’ in The Proceedings of the Aristotelian Society, (2009) 109 (1): 257–277).
104 As a result, whether this sentence is true or false at a circumstance of evaluation will depend on how the proper name S, the predicate φ, the deontic modal ‘ought’ and the adverbial modifier ‘legally’ correspond to the constituents of the proposition expressed. For the latter to be true, these lexical items must be related in the right sort of way such that their semantic relation is structurally analogous to the relation between the things in the world they correspond to.
B. Semantic Complications
The second issue that I need to address before narrowing down the scope of my semantic argument regards the parameters that are necessary in order to endow the truth conditions of legal propositions with the capacity to mirror the semantic content of legal assertions.83 On an account of propositions as structured entities truth conditions as such do not suffice to
83 On a broadly propositional understanding of meaning theories of meaning are theories of meanings, which, in the case of sentences, are the (structured) propositions expressed by them. By sharp contrast, sentential theories of meaning are theories of the truth conditions of sentences. The current project is not semantic in the sense that it does not aspire to provide a complete theory of legal meanings or, equivalently, a complete theory of legal propositions but it is nevertheless premised on a propositional rather than strictly truth- conditional theory of legal meaning such that to provide the latter theory is to systematically pair legal expressions with the entities (legal propositions) which are their meanings. In the course of this exposition I will be somewhat inaccurately referring to the semantics of legal claims rather than the semantics of legal propositions in an attempt to limit the ambit of my argument to how the truth conditions of coarsely regimented legal propositions rather than the complete interpretations of legal sentences (their representational content) is related to their truthmakers.
105 account for the meaning of legal sentences, or, equivalently, for the propositional content expressed by the latter.84 A fully developed semantic theory that takes structured propositions to be the meanings of sentences must explain how these propositions can represent the world as being in one way rather than another either by way of encoding or by way of being composed of the meanings of their semantically significant constituents.
My hunch is that none of these further semantic commitments is decisive for the purposes of my argument but they retain their decisiveness for those who wish to fully specify a theory of legal propositions as the meanings of legal sentences. On this hypothesis it remains a task for the legal propositionalist to offer an account of the constituents of legal propositions that is as fine-grained as possible. Granted that my preoccupation with legal facts as the truthmakers of legal propositions is contrastive rather than endorsive, it will suffice to offer a less than fully developed semantic account of legal propositions that will deliver a moderately fine-grained account of the structure of legal facts thus leaving the details for those who
84 Scott Soames associates the inadequacy of truth-conditional theories of meaning to account for the representational content of sentences with the failure of the idea that relativizing truth to contexts of use and/or assessment by making circumstances of evaluation even more fine-grained may enable us to construct a theory of truth that really does qualify as a theory of meaning. In his words,’ no theory satisfying certain well- motivated assumptions can identify the semantic contents of sentences (the propositions they express) with functions from circumstances to truth values, no matter how fine- grained the circumstances are taken to be…The reason truth- conditional intensions can’t serve as meanings is that they don’t encode the syntactic structure of sentences, or other complex expressions’ (S. Soames, What is Meaning?, Princeton NJ: Princeton University Press, 2010, p. 46). See also S. Soames, ‘Why Propositions Can’t Be Sets of Truth- Supporting Circumstances’ in Journal of Philosophical Logic (2008)37: 267–76.
106 really believe that legal facts exist. Occasionally, I will be rather loosely referring to this less than fully developed account of legal propositions as a preliminary semantics of legal claims or legal disagreement. That being said, I remain aware of the fact that the semantic digression I have announced will not go all the way down but rather it will stop at the precipice of more substantive semantic disagreement about the representational information encoded by legal sentences.
That being said, it remains pertinent to give a broad sketch of what kind of supplements a full-fledged legal propositionalist account will require in order to enable a transition to from a more fine-grained account of legal propositions to a more fine-grained account of their truthmakers. More specifically, this will require three further refinements. The first refinement regards the extent to which assertions of legal content are sensitive to a contextually furnished normative standard of evaluation.85 This is commonly described as the question of whether and how legal statements are inherently perspectival and as such it can affect the semantic contribution of legality both in its construal as a predicate (monadic or relational) and as
85 To slightly paraphrase Alex Silk’s pithy definition, semantic competence with sentences featuring deontic modals ‘requires , perhaps, among other things, having the capacity to correctly divide the space of [normative] standards, or distinguish among ways things might be might be [normatively]’ (Alex Silk, ‘Truth Conditions and the Meanings of Ethical Terms’ in Russ Shafer-Landau (ed.), Oxford Studies in Metaethics, Vol.ume 8, Oxford: Oxford University Press, 2013, pp. 195-222, at 219. With a view to showcasing the scope of his argument I have taken the liberty of paraphrasing Silk’s talk about moral standards with a moral general expression (normative standards). That being said, I believe that his point cuts across the spectrum of normative language in a uniform way.
107 a modifier of deontic operators. The second question is about the semantic value of ‘legality’ and more precisely about whether it is two-dimensional in the sense that even if we ultimately agree that, for instance, legal norms are necessarily the contents of the authoritative pronouncements of legal officials, we may insist that there are true epistemic statements to the effect that, for instance, what is a legal norm (of S) could have turned out to be what best justifies the exercise of state coercion.86 Third, it may be the case that the representational content of legal claims not only depends on certain aspects of the actual world but also on facts about the location within the actual world where it is used. If that is so, ‘legality’ irrespective of its proper semantic role—as a predicate, a singular term or a propositional operator—is self-locational in the technical sense that its semantic value is fixed not just at a possible world but at a centered possible world, namely at something (e.g. a legal practice, legal institution, or legal system) within a possible world.
B.1. Perspectivalism About Law
What ignites the first spark of controversy among legal philosophers who converge in their espousal of a cognitivist semantics for legal statements is the question of whether and how the truth or extension of legal statements
86 It seems at least as an a priori epistemic platitude that there must be a way for this term to non-rigidly track whatever object ultimately turns out to satisfy a description relative to different hypothetical scenarios.
108 is sensitive to the invocation of normative standards.87 More precisely, the controversy can become visible as soon as we ask whether it is the content or the extension (truth-conditions) of legal statements that depends on a distinctly legal point of view. This is a real semantic problem only if we presuppose that true legal statements are a kind of de re or de dicto normative truths which further implies that the semantic value of legality is either a normative property or a source of normative requirements. On these terms I see no point in addressing this potential dispute in great detail as my semantic argument is precisely geared toward rejecting both predicative and normative sortal analyses on grounds that are not related to the way in which they handle the context-sensitivity of legal statements.88
That being said, one should expect in fairness that my route to ultimately rejecting these alternatives is not in principle negligent of their own challenging implications. As I see it, this expectation is no more demanding than a request for an illustration of what would be at stake should it be the case that the predicative or normative sortal analysis of legality were correct. For now I will leave aside the possibility and the perplexities of understanding legal statements as deontic de dicto statements mainly
87 There are many aspects of the context of use that can attract our interest depending on the type of assertions we set out to examine Three of the most familiar contextual aspects that are usually invoked in semantic analyses are the time of the context, the location of the speaker or another semantically salient individual and the normative standards (deontic, epistemic, aesthetic etc.) that are in play in the relevant context. 88 By the end of the next section I will provide a sketch of an objectual, so to speak, semantic analysis of legality that divests this question of its subject matter by replacing it with what, as I shall argue, is a proper semantic puzzle.
109 because I plan address this possibility as entailing a semantically distinct position which I will associate with Scott Shapiro’s planning theory of law.
By contrast I will briefly address the variety of options pertaining to de re normative truths in a uniform way for the reason that, as I tend to understand this matter, all their possible manifestations admit of a similar semantic treatment. More precisely, legal statements could be understood as de re normative truths under three alternative interpretations of the semantic contribution of legality.
A first type of challenge for determining the role of context in legal statements emerges from two alternative predicative analyses of legality.
On the first interpretation, the logical form of a sentence like “A legally ought to φ” could reveal that a suitable semantic role for legality is that of a monadic predicate such that the latter sentence can be read as predicating legality of an agential, so to speak, state of affairs, i.e. “A’s φ-ing is legal” or more formally “L(Aφ)”. On the second interpretation, the logical form of a sentence like “A legally ought to φ” could reveal that legal statements express a particular class of legal deontic relations such that the latter sentence can be read as being about the obtaining of a relation of legal requirement between the LAW qua source of requirements, an agent A and an act-type φ, or more formally R(LAφ). Assuming that the property being legal or the relation being required by the LAW (or for short, being legally required) are relative expressions, two options are available; first, their semantic content can remain the same across different contexts of use but
110 their extension can be sensitive to the legal standards figuring in the circumstances of evaluation determined by the context of use. This amounts to a contextualist understanding of the context-sensitivity of legal statements in the sense that although “legality” designates either the property being legal or the relation being legally required both the property and the relation are determinable, not determinate. As a result their correct attribution would acquire a determinate extension only when a normative standard specifically figures in the circumstances of evaluation.
Otherwise it will remain an open semantic question whether a particular agential state of affairs (A’s φ-ing at time t) falls into the extension of being legal or an agent and an act-type fill the argument places of the relation being legally required.89
A similar challenge can be faced by those who would prefer a quantificational unpacking of statements like “A legally ought to φ”. On this approach, the semantic contribution of ‘legality’ is again that of a source of requirements operating as a modal restrictor on the deontic modal ‘ought’.
On this view, ‘legally’ operates like any other adverbial modifying expression (“morally”, “rationally”, “from the point of view of chess or etiquette”) in that it serves as a standard governing the ordering of the best
89 There can be a relativist interpretation of the same statement such that the extension of “A’s φ-ing is legal (at t)” or “A is legally obligated to φ” is true at a context of use and a context of assessment. On this reading, the circumstances of evaluation in which the legal point of view figures are an ordered pair wherein the normative standards in play are not determined by the context of use but by the context of assessment, that is, the context in which someone (the evaluator) assesses a particular world and time-bound use of a sentence for truth or falsity.
111 possible circumstances over which the deontic modal quantifies. Now there are two context-related questions as soon as we take on board the idea that legality designates a standard or normative viewpoint. The first one is about whether the normative viewpoint of the law figures into the content of legal statements. The second one is about whether the normative viewpoint of the law is determined by the context of use or the context of assessment.
With regard to the first question, one option is to treat the legal point of view as an indexical expression. On this construal it is the content, not the truth-conditions, of legal statements that depend on the contextually furnished legal point of view. Thus, a speaker saying that A legally ought to
φ expresses different propositions depending on which particular legal system, jurisdiction or institutional standpoint is taken as the referent of the legal point of view.90 What is distinctive of this robustly contextualist approach is not the context-sensitivity of the legal point of view vis-à-vis those who formally pronounce it but its indexicality in the sense that the authoritative origin of the legal point of view always figures in the content of legal statements. On an alternative non-indexical reading it is the truth-
90 Strictly speaking, what could allow our treatment of the legal point of view as an indexical is not the lexical item ‘legal’ but the possessive component of the compound noun phrase ‘the legal point of view of someone/-thing’. Thus the legal point of view can refer to as many points of view as there are legal institutions or offices. The legal point of view of the US Supreme Court is not, by default, semantically more salient with regard to the legal point of view of a US District Court judge.
112 value, not the content, of legally qualified deontic propositions that depends on the applicable standards within a particular legal order.91
In its turn the latter, non-indexical construal makes two options available.
In the spirit of contextualist semantics the same sentence expresses a context-sensitive normative proposition whose truth depends on which specific legal point of view is in play at the context of use. Consequently, legal statements can have contextually variable truth-values but context- invariant contents.92 Relative to the circumstances of John, who is a constitutional lawyer, the proposition that A legally ought to have her ID card inspected while entering public museums may be false, but relative to the circumstances of Mary who is a District Court judge the same propositional content may be true. What cannot be the case is for a dated, world-bound sentence to be both true and false. On a relativist approach the circumstances for evaluating the truth of a legal statement would be determined by the context of use and the context of assessment such that a
91For the relevant distinction between indexical and extensional accounts of perspectival and other context-sensitive statements, see John MacFarlane, ‘Nonindexical Contextualism’ in Synthese (2009) 166 (2): 231-50. 92 The technical twist in this approach is that the contents expressed by legal utterances are a function from a
113 dated, world-bound legal statement can be both true or false depending on who assesses its truth.93
B.2. Is Legality Twin-Earthable?
Assuming, for a moment, that it is an open question whether legality designates a property, a relation, a kind or an abstract object, any participant to this semantic dispute is entitled to ask whether the extension of legality can be determined only insofar as we can correctly apply a set of extra-semantic, jurisprudential criteria that individuate legality against, say,
“schmegality” or other irrelevant kinds. An equivalent formulation of the same question is whether we should build substantive jurisprudential assumptions about what the correct theory of law is into the meaning of legality as such. To see how this puzzle works, suppose that Shapiro were right about his understanding of legal norms as plans. On this assumption, someone might say that the sentence “A legally ought to φ” is true iff A’s φ- ing realizes a plan stipulating that φ-ing is obligatory. Would it still be possible for an antipositivist to intelligibly disagree with these purported truth-conditions while counting as semantically competent with the use of the term ‘legal’?
93 As Andy Egan remarks, ‘it’s only once we’ve got both a context of utterance [that is, a context of use] and a context of assessment that we know which index [that is, which circumstance of evaluation] to feed into the content in order to get a truth-value’; see A. Egan, ‘Relativism about Epistemic Modals’ in S.D. Hales (ed.), A Companion to Relativism, Oxford: Wiley-Blackwell, 2012, pp. 219-41, at 228.
114 This is a puzzle about the seeming metaphysical opacity of the semantic value of legality. Even if we definitively agree that legal norms are necessarily the contents of the authoritative pronouncements of legal officials, we may insist that there are true epistemic statements to the effect that what is a legal norm (of S) could have turned out to be what best justifies the exercise of state coercion. It is an a priori epistemic platitude that there must be a way for this term to non-rigidly track whatever object ultimately turns out to satisfy a description relative to different hypothetical scenarios. The metaphysical opacity question is a more formal rendition of what has been described as ‘pedestalism about law’.94 According to legal pedestalists ‘the average speaker’s ability to refer determinately to laws by employing the term ‘law’ is to be explained by attributing to her an implicit reliance on jurisprudential expertise’.95 To be fair pedestalism is not a self- standing theory of the semantics of “law”; rather it has been put forward as a critique against theories of law that place too much emphasis on issues of interpretation and normative reasoning with regard to the determination of legal content. Nevertheless, the upshot of this criticism can place severe constraints on the communicability of legal content unless there is a way of allowing for a minimum of successful legal communication among the non- legally trained. So, the second question amounts to whether it is intelligible to assert legal content without being capable of successfully referring to
94 The term has been introduced by Jules Coleman and Ori Simchen in ‘Law’, Legal Theory (2003) 9: 1-41. 95 ibid p. 27.
115 what the best jurisprudential theory identifies as the abstract object that legal norms pick out.
The same question can be articulated in a more formal way if we ask whether the extension of legality be relativized to more than one possible world parameter. More precisely, one could ask whether the semantic value of legality should be determined relative to both circumstances of evaluation and ways the actual world turns out to be.96 The question of whether semantic competence with legality comes in waves, so to speak, is fine-tuned with the desirability of making room for the possibility of ignorance or error with regard to what it takes for something to be the designation of legality in any possible world. If there is a plausible way of affirming this intuition it could be the case that, primitively, speakers can have a priori access to a reference-fixing criterion for the use of the term
‘legal’ without necessarily grasping the modal profile of the property, relation, kind or object picked up by this expression. For instance, this possibility is explicitly defended by proponents of two-dimensional semantics, hence it is up to the “legal semanticist” to explore the scope of
96 This possible world semantics parsing of the doubly intensional meaning is not meant to exclude the possibility of espousing a more fine-grained account of propositional content such that both the primary and secondary intension of legal statements are structured entities. To paraphrase David Chalmers’ suggested adaptation, we can define the primary intension [of a legal statement] as a structure consisting of the primary intensions of all the simple expressions in a sentence (along with any unpronounced constituents), structured according to the sentence’s logical form. One can define the structured secondary intension likewise.” (David Chalmers, ‘Propositions and Attitude Ascriptions: A Fregean Account’ in Noûs (2011) 45 (4): 595–639, at 600).
116 applicability of this theory in our understanding of legality. A sample of analogical thinking would roughly amount to the idea that the reference of the term ‘legal’ can be fixed by one’s ideal verdicts about which properties, relations, kinds or objects could count as being legal on the basis of full jurisprudential and perhaps socio-cultural reflection. Supposing that legality designates the abstract object valid authoritative pronouncement the two- dimensionalist can argue that the term ‘legal’ actually refers to valid authoritative pronouncements in all possible worlds iff that would be the verdict one would ideally endorse if she had acquired a comprehensive jurisprudential grasp of the intricacies of actual legal practices across different jurisdictions; by contrast, legality would pick out the property being a determinate rational standard of conduct if one’s actual world were like Twin Earth whose inhabitants devoutly practice natural law.97
On a two-dimensional modeling of legality its so-called primary intension picks out a description of law (that is not constitutively tied down to the contingent features attaching it to a particular legal system) in a world considered as actual whereas its secondary intension picks out an abstract object, property, kind or relation in a world considered as counterfactual. At rough approximation the extensions of the former function (primary intension) could correspond to any epistemically privileged description like, for instance, ‘what is being treated as enforceable within a particular
97 For a concise presentation of epistemic two-dimensionalism, see David Chalmers, ‘Epistemic Two-Dimensional Semantics’, Philosophical Studies (2004) 118 (1-2): 153-226.
117 political cimmunity at a particular time’. On the other hand, the semantic value corresponding to the secondary intension could be determined in a variety of ways which taking different epistemic scenarios could deliver ‘a valid authoritative directive’ (Raz), ‘a rule validated by the rule of recognition’ (Hartian positivists), ‘a plan-like norm’ (Shapiro), ‘a norm backed up by decisive reasons for action’ (strong natural law), ‘an instance
(good or defective) of the kind Law’ (weak natural law) or ‘an instance of what contributes to the best justification of the practice as a whole’
(interpretivism).
To illustrate this, meet Sam. Sam lives in Canada and has no formal education in law but is determined enough to afford an assertion about the content of the environmental legislation on the liability of companies exploiting renewable energy resources. Let’s assume that the rough content that is actually attributed to Sam’s national legal system is a complex proposition E containing an enumeration of the conditions of the relevant corporate liability. Now Sam comes to utter the following statement ‘E is a legal norm’. If asked about the way he was led to ascertain this, Sam will reply that his friend, Stewart, is a lawyer specialized in environmental law and that the latter assured him of the accuracy of this content. So, apparently, Stewart must also have said something like ‘E is a legal norm’.
The upshot is that we have two identical statements by two different speakers and the pressing question is whether there is a sense in which they mean the same thing when attributing E to the content of the law.
118 Sam’s utterance is based on evidence (legal testimony), whereas Stewart’s claim is the result of self-engaged legal reasoning.
Before venturing an answer to this question, a few preliminary remarks are in order. On the proposed two-dimensional framework, Stewart is competent enough to grasp both the primary and the secondary intension of the aforesaid predication which, if true, yields the extension P: ‘E is a legal norm of Canada’. On the contrary, Sam cannot really count as referring to a statement as complex as P as he has no clue of what legal reasoning is all about. Without any further elaboration, one could say that Sam and Stewart cannot engage in an informative dialogue about issues of legal content. Sam is just vicariously partaking of Stewart’s confidence in making a legal assertion and that’s pretty much the end of the story.
My suggestion is that there is more to be said about the chances of informative communication between these two persons. Returning to our initial example, Sam’s informational background for evaluating the truth of his statement is limited to the actual world as viewed from the perspective of the legal practice that surrounds him. On this scenario, all that Sam needs to count as a competent speaker is an indexical knowledge of who the relevant legal officials or practitioners are, what the spatiotemporal domain of the practice is as well as an empirical recognition of what these ‘erudite’ people treat as enforceable in the relevant jurisdiction. All that matters is for Sam to hypothesize that this centered world is his own actual world. To
119 be capable of making such a hypothesis is to be capable of affording a rough description of W that is articulated in terms of some neutral expression(s).
In Chalmer’s words, neutral expressions are those ‘whose extension in counterfactual worlds does not depend on how the actual world turns out’.98
My suggestion is to describe a world centered on a particular legal practice as a world where some indexically designated officials (including lawyers) treat certain states of affairs as enforceable within the indexically located jurisdiction. In Chalmer’s jargon the above description is not ‘twin- earthable’ and thus neutral in the sense that were a legal practice to have a material and phenomenal duplicate on a Twin-Earth the secondary intension of an expression token like ‘the officials treat certain states of affairs as enforceable within the jurisdiction’ would yield the same extension on both planets. Hence, the description suggested as corresponding to the primary intension of ‘is a legal norm’ is neutral enough to behave in the same way whether one considers a world as actual or as counterfactual.
Assuming that these provisos are observed, it is safe to infer that Sam is not merely re-pronouncing the words uttered by Stewart. Both of them mean the same thing insofar as the expression’s ‘E is a legal norm’ primary intension is concerned. This is all what is needed for a minimum of successful communication. Both Sam and Stewart can have an empirical understanding of the output of a practice that treats certain act-types or states of affairs as enforceable. Surely, Stewart would hesitate to equate
98 D. Chalmers, ‘Epistemic Two-Dimensional Semantics’, ibid, p. 192.
120 law essentially with whatever is treated as enforceable, but that is not what my argument implies. Law may require sophisticated normative or conceptual argumentation in order to acquire its shape but this is a metaphysical matter that need not and should not permeate our semantic argumentation. Sam’s inability to grasp the meaning of something’s being a legal norm is not devastating for his linguistic competence. At the same time, Stewart’s utterance is capable of gaining a second-dimensional truth- value by referring to an abstract object (say, an authoritative directive).
B.3. Is Legality Self-locational?
Assuming, for the sake of the argument, that legality operates as the singular term legal norm we could coherently ask whether legality could turn out as many referents as there are legal systems or law-like institutions such that in different contexts of use ‘is a legal norm’ may designate what is a legal norm of the Hellenic Republic or a legal norm of the French Republic and so forth. This is a further puzzle about the precise way in which attributions of legal content are self-locational. In particular it regards the possibility of there being shareable semantic content in cases of attributing the same legal content to different legal systems. Facts about legal content are always anchored to a spatiotemporally demarcated legal practice operated by appointed officials whose sayings and doings are constitutively implicated in the generation of legal content. How is it then possible to
121 account for our intuition that law has a wider semantic scope such that it makes sense to talk about the approximation (unification or harmonization) of legal content belonging to different legal systems or about the proper application by national authorities of a trans-territorial source of law such as human rights law?99
A beginning of an answer to this question could be a further refinement of the two-dimensional analysis suggested above. That is to say, the reference of legality may not only depend on certain aspects of the actual world but also on information about the location within the actual world where attributions of legal content are performed. The formally capture this qualification the two-dimensionalist could argue that the primary intension of a legal statement will be a function over pairs of one centered (the epistemic scenario considered as actual) and one uncentered world (the epistemic scenario considered as counterfactual) instead of two uncentered worlds. Notice that, on this approach, no particular reference to a particular legal system figures into the primary intension. Strictly speaking, the
99 For two speakers to talk about the same legal content we ought to assume that they are implying a particular legal system. Hence if speaker A says that p is a legal norm and speaker B also says that p is a legal norm, the only way for them to share the same semantic content is to analyse both sentences into the contextually enriched content ‘p is a legal norm of system S’. If the contexts of A’s and B’s utterances refer to different legal systems there remains no other level of shareable semantic content than the function from a world of evaluation to extensions where implicit indexical terms are replaced with their referents (e.g. the Greek legal system). So, roughly, the result is that what is said by A is that ‘the proposition that φ-ing is obligatory is a legal norm of the Hellenic Republic’, whereas what is said by B is the substantively different sentence ‘the proposition that φ-ing is obligatory is a legal norm of the French Republic’. On this picture it is hardly evident that these two speakers have anything to share at any level of semantic content.
122 primary intension of legal norm is a function from centered worlds to extensions. The latter intension is true relative to a world w centered on the legal practice S at time t iff there corresponds a particular state of affairs that, given the description suggested above, is treated as enforceable within the law practice L at the center of w.100 The primary intension encodes a semantic rule governing how the extension of the term legal norm may vary from one centered world to another. For example, at a world viewed from the perspective of the Greek legal practice at time t the expression’s primary intension, if true, will yield the extension ‘that which treated as enforceable within the Greek legal practice at t’. At a world centered on the
French legal practice at t, the primary intension may turn out to be false and so on.
As long as the rule codified by the primary intension of the term retains its general descriptive content—that is, ‘legal norm’ picks out what is treated as enforceable within a given legal practice—there is a level of semantic content at which two speakers can mean the same thing insofar as they associate the same propositional content with the content of the law even though they refer to different legal systems. Put differently, the
100 Formally speaking, a centre is a set-theoretic construction that contains a world and an individual or an individual-like entity. Nonetheless, this description is not fully accurate as what a world is centred upon is not an individual (or abstract object) simpliciter but an individual being in such-and-such place and time, having such-and-such gustatory standards and so on. Hence it would be more precise to say that a centre is a [world, individual] pair where the individual parameter itself consists of the individual’s being in a certain situation. See Andy Egan, ‘Secondary Qualities and Self-Location’, Philosophy and Phenomenological Research (2006) 72: 97-119.
123 context-sensitivity of the term ‘legal norm’ does not affect the uniformity of the content of the semantic rule that serves as its primary intension. The fact that the truth-conditions of two orthographically identical sentences (Φ is a legal norm) differ does not alter the fact that the commonsense understanding of Φ is a legal norm is shaped by a conventionally practicable descriptive rule stipulating that irrespective of what verifies or falsifies the sentence what is being picked out is what is treated as enforceable by the legal practice (at the center of the world of evaluation). The semantic rule which constitutes the primary intension does not encode in it any indexical information about the identity of a particular legal practice.
The semantic upshot of incorporating the self-locational aspect of legal assertions is that it is at least epistemically possible to attribute the same propositional content to various legal systems. That can be a matter of coincidence or the result of practices aiming at the unification or harmonization of law across different legal systems. For instance, public international law aims at penetrating into national legal systems—often through national court rulings—to grant rights or impose obligations on individuals and corporations. Although the question of whether international law as such is premised on the existence of an international normative order remains deeply disputed, the practice of both national and international courts frames its legal reasoning and decisions in terms of what the applicable international law is, not in terms of what qualifies as a legal norm of a particular political community. Within this context it is
124 intelligible to say that there is at least a sense in which the judges of national courts belonging to different states are talking about the same thing when they adjudicate disputes by correlating particular rights or obligations with ‘the content of international law’.
C. A Semantic Digression: Some Preliminary Remarks
The motivation for this alternative parsing of our substantive disagreement about law originates from what I believe to be a misleadingly loose admission of legal predications without a specification of their truth- conditional structure. The picture is quite familiar: in our ordinary engagement with law we are rather permissive in the way in which we allow
“legality” to figure into our relevant assertions. Locutions like ‘A is legally obligated to φ in S’, ‘φ-ing is legal in S’, ‘there exists a legal norm in S to the effect that it is obligatory to φ’, ‘the proposition that one is obligated to φ is legally valid’ or ‘the law requires that A φ’ are used interchangeably in the invariable context of our disagreement about what makes these assertions true.
The problem with these loose ascriptions of legality—as a relation between agents and actions, a normative property of acts, an abstract object, a descriptive property of propositions or a sortal entity—is that they are not equally interchangeable at the level of truthmakers. Given that legal propositionalists indistinguishably opt for legal facts as the truthmakers of legal propositions, the structure of these facts must somehow mirror the
125 truth-conditional structure of propositions about legal content if the transition from true legal propositions to legal facts as their truthmakers is to remain seamless. But if that is the case, not anything goes with regard to the truth-conditional structure of these propositions! If this universal talk about legal facts is literal and not figurative, it remains imperative to reach some consensus with regard to whether the truth-conditional content of
“legality” corresponds to a predicate (monadic or relational), a singular term, a sortal entity term or an abstract object term.
In this vein, I will explore four distinct semantic alternatives contributed by the lexical item ‘legal’ as it figures in deontic statements about what is required, prohibited or permitted within a given jurisdiction, namely, legality as a monadic predicate, legality as a relational predicate, legality as a singular term and legality as a normative-kind-designating term. The truth-conditions I will ascribe to each case will feature legality alternatively as a thick normative property of actions or omissions or, alternatively, a descriptive property of propositions (the monadic predicate case), as a relation of legal obligation (permission, empowerment, or prohibition) holding between agents and actions, as an abstract object in two versions, one atomic (legal norms) and one holistic (the content of the law) and finally as a sortal entity that operates as a source of specifically legal requirements.
As one may already presume, each alternative semantic account will vary with regard to its appeal depending on one’s first-order jurisprudential
126 views. Venturing a guess a legal positivist would most probably gravitate toward an account of truth conditions that depicts legality as an abstract object or descriptive property. It would then become intelligible to further associate legality with a legal norm or an intentional object (a plan), or the property of legal validity. If this semantic analysis can withstand scrutiny, it will deliver a structurally isomorphic class of legal facts qua truthmakers such as facts about the existence of legal norms or facts about the obtaining of a plan or facts about which norms or propositions are legally valid. By contrast, one could expect that a natural law theorist would lean towards the sortal entity or property reading with a view to depicting legal facts as facts about the obtaining of a determinate normative relation or facts about what the LAW qua sortal entity requires.
Hopefully, by way of exploring each of the four semantic options it will become evident that preserving the discretionary endorsement of alternative semantic uses for legality is both semantically and methodologically spurious. Firstly, as I intend to demonstrate, it is semantically misleading to assume that the semantic value of legality is as loosely determinable as evidenced by contemporary jurisprudential prose.
More precisely, I will try to argue for the view that a shareable and strictly defined semantic platform is available that is non-committal with regard to one’s substantive jurisprudential views. On this platform legality will feature as a singular term affording only limited laxity with regard to whether attributions of legal content are construed as atomic or holistic.
127 Secondly, it will be a methodologically necessary achievement to reach some broad consensus on what qualifies someone as a competent assertor of legal content for a forward-looking reason. This will be a necessary step both for those who aspire to elicit metaphysical implications from the logical regimentation of legal language but also for those who want to allow that legal truth is grounded on facts that do not reflect the truth-conditional structure of legal propositions.
The upshot of this digression will deliver a logical regimentation of legal propositions that vaguely resembles our ordinary language ascriptions of
“legality”. I will argue that a sentence like “it is legally obligatory to φ in S” is syntactically regimentable as “the proposition that φ-ing is obligatory is a legal norm of S (or part of the content of the law of S)”. The latter analysis will deliver a logical regimentation representing a copular sentence which features an indefinite proposition description (henceforth PD) as the subject term and the referring expression ‘a legal norm of S’ or, alternatively, ‘a part of the content of the law of S’ as the predicate complement. The resulting logical form can be represented as PD*L, where PD stands for a propositional description, * is the symbol for the copula and L is a referring expression.
I will be using the nominal construction “the proposition that…” as a dummy sortal term101 that needs to be further cashed out in terms particular
101 A “dummy sortal” is a term that functions grammatically (i.e. it is modified by articles and quantifiers) as a sortal but whose truth value is not a real kind. For instance, terms like ‘substance’, ‘thing’, ‘body’ or ‘object’ are standardly described as dummy sortals in the sense that they cannot make any semantic contribution independently of more specific
128 to the jurisprudential vocabulary used by different theorists.102 At first approximation, all occurrences of both the noun phrases “the proposition that it is obligatory to φ” and the corresponding that-clause “that it is obligatory to φ” seem to designate the same proposition, namely, [it is obligatory to φ]. As a result, one could remark, the truth or falsity of the utterance “the proposition that it is obligatory to φ is a legal norm of S” at a circumstance will ultimately depend on the properties possessed by the proposition that “the proposition that it is obligatory to φ” at the same circumstance of evaluation. This would be a non-starter at least for the legal positivist as it would make the truth of legal assertions transparent to the truth of one of their constituents, namely, the noun phrase “the proposition
terms subordinate to them. David Wiggins explains this distinction in terms of an identity principle. He notes that ‘[i]f a is the same as b, then it must also hold that a is the same something as b’ (David Wiggins, Sameness and Substance, Oxford: Blackwell, 1980, p. 47, see also his Identity and Spatio-temporal Continuity, Oxford: Blackwell, 1967, pp. 29-35). In other words, to say that an term does not express a real sortal is to say that it is not a proper answer to the question “same what?”. By the same token being a proposition does not settle the identity conditions of an entity endowed with propositional structure. The nominalized description ‘the proposition that…’ purports to perform the grammatical role of whichever sortal object really figures in constitutive legal claims. In this regard a semantically complete regimentation of an ordinary legal claim will ultimately feature more specific sortals such as “authoritative directive (to the effect that)” (Raz), “the moral fact (that)” (Greenberg) or “a rational requirement (to)” (Shapiro). For a critical analysis of this distinction see Eric Marcus, ‘Events, Sortals, and the Mind-Body Problem’ in Synthese (2006) 150 (1): 99-129. 102 Thus, for instance, in the Razian version of exclusive positivism the sentence “it is legally obligatory to φ in S” will be true iff an authoritative directive (to the effect that everyone φ’s) constitutes a legal norm of S.
129 that it is obligatory to φ” whose referent would be a contingently true or false normative proposition.
Hopefully, this is not a semantic factum as it remains a valid possibility to assume that in its current use “the proposition that it is obligatory to φ” is not intersubstitutable salva veritate with the corresponding that-clause nor does there exist a semantic imperative this noun phrase directly refer to the proposition [it is obligatory to φ]. In the current legal context, this dummy nominalization will deliver on the truth-conditional side of our analysis either a non-legal abstract object or a normative fact depending on one’s positivist or antipositivist metaphysical inclination. Bearing in mind that a two-dimensional account of the term legal norm or part of the content of the law can accommodate both the need for jurisprudential clarity and minimal semantic competence, I will deliberately endorse a more permissive stance towards the interpretation of the non-legal constituent in utterances like “the proposition that it is obligatory to φ is a legal norm of S” or “the proposition that it is obligatory to φ is a part of the content of the law of S”.
A further semantic puzzle to explore on our way to delivering the truth conditions of legal propositions will be about the semantic contribution of the copula is. In the relevant section I will suggest that we are to choose between four semantically distinct values for is. The canvas will feature an attributive sense, an identity sense, an instantiation sense and a constitutive sense. After proper reflection, I will reject the first three readings for the
130 constitutive account which, as it will become evident, is ideally fitting for the case at hand. The reason is that regardless of one’s positivist or antipositivist allegiances it is a well-embedded intuition that law is at least partially created or crafted by people designated for that purpose and this is precisely the sense that the is of constitution purports to convey. Legal norms or parts of legal content do seem to be partly constituted by non- legal “materials” and the ensuing question is how this is made possible.
In the light of these preliminary remarks, my suggestion will be that the sentence “the proposition that that φ-ing is obligatory is a legal norm of S
(or part of the content of the law of S)” will be true iff [the proposition that φ-ing is obligatory] constitutes a legal norm of S (or a part of the content of the law of S). The brackets under which the noun phrase is placed will be deliberately preserved for the reason explained above, namely, that in a complete account of truth conditions one will have to replace this construction with its proper designation. Thus, on a Razian account “the proposition that that φ-ing is obligatory is a legal norm of S (or part of the content of the law of S)” will be true iff an authoritative directive constitutes a legal norm of S. This reading does justice to
Raz’s persistent vision that the content of law is somehow a function of the content of authoritative pronouncements. By contrast, on Mark Greenberg’s moral impact view, it would be pertinent to expect that the same sentence will be true iff the fact that it is obligatory to φ constitutes a legal obligation to φ in S. In the latter case, the noun phrase denotes a
131 normative fact that captures the impact of facts about the sayings and doings of legal officials on what Greenberg describes as the moral profile.103
I.5.2. Back to Legal Metaphysics
The main argument for the constitutive parsing of legal propositions is that it does better in regimenting the language of our disagreement such that regardless of our divergent jurisprudential views we can take assertions represented by this form as a fairly neutral and informative point of departure. The neutrality of this semantic regimentation is evidenced by two things; first, by building into the content of a legal proposition the dummy sortal the proposition that φ-ing is obligatory it allows for different verdicts with regard to its semantic value and second by allowing two syntactic manifestations of legality, either as a legal norm or as a part of legal content, it retains a degree of laxity with regard to the individuation of legal content. Moreover, by analyzing the copular sentence “A is B” in constitutive terms it encodes into the content of our legal assertions the information that assertions of legal content have a constructive or creative flavor in the sense that in declaring a particular propositional content as counting as a legal content we also impart the information that a higher- order object is constituted by a non-legal one bearing the same
103 Greenberg defines the moral profile in a particular society as the set “of all of the moral obligations, powers, permissions, privileges, and so on that obtain in that society” (see his ‘The Standard Picture and Its Discontents’ supra note 26, p. 56).
132 propositional content with the former. This is precisely the semantic effect of claims of material or, in our case, abstract constitution.
As noted from the beginning of this exposition, this semantic digression despite its length purports to be a detour precisely because it is instrumental to our understanding of both how legal propositionalism is supposed to work as well as how its opponents could structure their response. This can become apparent as soon as we ask what the possible routes are from the truth conditions of legal propositions to their truthmakers. This will be the definitive reappearance of the use of
“ontologese” in my argument for the purpose of culminating the substantive prong of legal disagreement. If we take on board the idea that the site of theoretical disagreement about law is about the grounds of the truthmakers of legal propositions, there will be two more steps left to return back to where Dworkin had initially located the site of our disagreement, namely, the question of the non-legal grounds of law. The penultimate step will feature the truthmakers of legal propositions whereas the ultimate step will feature the facts that ground the latter. Hopefully, this return will not be overshadowed by a feeling of intellectual vanity or idle digression from the crux of the matter. As soon as the penultimate step is taken, it will become evident that this return carries along a novel metajurisprudential taxonomy that will cast new light on what is at stake in the first-order dispute between legal positivists and antipositivists about the grounds of law. Finally, by taking the last step I will be in a safer position to venture a substantive
133 counter-proposal to theories that in this new taxonomy occupy positions reflecting the endorsement of legal propositionalism.
A. Reweaving the Web
The penultimate stage of my argument will mark a clear shift from the semantic metalanguage of truth conditions to the ontological vocabulary of truthmaking. Granted that we have acquired a better grasp of the meaning of legal assertions, there is nothing that can prevent us from switching levels of discourse. On the assumption that legal propositions are propositions about the constitutive relation between non-legal propositional entities (facts or abstract objects) and legal norms (or parts of legal content), it is an opportune moment to ask what grounds the truth of these constitutive claims. This is far from a trivial exercise in descriptive metaphysics as clearly evidenced by the degree of perplexity in which philosophers vest their arguments for or against the possibility of spatiotemporally or abstractly coincident objects. More specifically, I will try to showcase the non-triviality of this penultimate step by exploring the impact of the previous discussion about the metaontological controversy between broadly quantificational and truthmaker views of ontological
134 commitment. More precisely, we could ask how the division of opinion with regard to the possibility of constitution can be informatively re-articulated as being a reflection of the aforementioned metaontological division of opinion.
To see how the correlation between the ontological dispute about constitution and the metaontological dispute about ontological commitment can serve as a template for generating a new metajurisprudential taxonomy, it is advisable to begin by introducing the vocabulary through which philosophers express their disagreement about the possibility of constitution. Consequently, I will resume the key points raised with regard to where the dispute about the relation between truth conditions and reality is located. The innovative conclusion of this line of reasoning will present an interlacing of the criteria used to articulate both disputes such that under the new scheme both defenders (pluralists) and opponents (monists) of the possibility of constitution can be subsumed under the same quantificational view of ontological commitment.
What will preserve their original opposition are the precise theoretical options they consider appropriate for implementing their metaontological intuition in the case of constitution-committing sentences. As a result this reshuffling will produce an empty slot for those who take constitutive claims to be literally true but refuse to take their truth-conditional content as a guide for what makes them true. Under this new scheme the original first- order distinction between pluralists and monists fails to capture their
135 dissent as their point of departure is that constitutive claims are literally true but do not impose any ontological commitment whatsoever either to the existence of the constituting object or the existence of the constituted object or the existence of both.
Starting from the vocabulary used to frame the familiar dispute between proponents and opponents of the possibility of spatiotemporally or abstractly coincident objects it is worth noting that the outstanding problem for those who wish to explain material coincidence is not literally identical with the problem faced by those who wish to explain the possibility of there being abstractly coincident objects. Whereas the former problem is about the possibility of materially coinciding objects sharing their matter, occupying the same spatiotemporal region whilst remaining numerically distinct, the latter problem is about the very possibility of creating abstract objects such that a particular sound pattern can be said to constitute a musical work (via the creative intervention of the artist). On the one hand the creativity claim occupies center stage for anyone daring enough to talk about the ontology of artworks. On the other hand, it is an ontological platitude that abstracta cannot be created in the sense there is no creative moment such that if it is true at any time that an abstract object a exists, then it is not true at all times that a exists.
There is no doubt, I believe, that if there arises of problem of constitution in the case of law, it must be a problem of abstract rather than material constitution. More precisely, the problem would take the form of a prima
136 facie inconsistent propositional triad: (a) legal norms are created, (b) legal norms are abstract objects and (c) abstract objects cannot be created. With regard to the first proposition it bears mentioning that any legal philosopher of a broadly cognitivist conviction would accept that there is a creative moment in the obtaining of legal norms that is more or less accurately identified with their enactment. The familiar division of opinion is not about the necessity of enactment but about the way it becomes relevant for determining the content of the law.104 With regard to the second proposition it should be clear by now that this categorization as well as the entirety of this exposition is meant to have some purchase on the questions that divide legal philosophers who already countenance the possibility of legal truth. It would be no surprise then that this entire talk about the constitution of abstract legal norms would be nonsensical for non-truth-conditional theories, like legal expressivism or legal realism.
That being said there will be no need to delve into terminological distinctions that carve the division of opinion about the problem of constitution precisely because the dividing line in both versions of the problem is defined with respect to the numeric criterion of ontological distinctness rather than the nature of the contribution of the creator or manufacturer. Dismissive and defensive responses to this puzzle tend to be classified under the terms ‘monist’ and ‘pluralist’ respectively such that
104 This intuition also applies with regard to the obtaining of legal custom as despite the absence of an enacting moment there still exists a diachronic activity or practice of endorsing and implementing a standard as a custom which from an ontological perspective can be still be regarded as a process of creation.
137 those who take constitution to be nothing more than identity restrict their ontological commitments to the existence of one object—be it the constituting bronze or the constituted statue—, whereas those who take constitution to be a distinct metaphysical relation are eager to take on the ontological board both a bronze (constituting) object and a statue (object).
What I have attempted so far is a very general explication of one metaontological position, namely, that ontological commitments must reflect the truth-conditional structure of ordinary language, and an ontological dispute about the possibility of spatiotemporally or theoretically coincident objects. This is far from qualifying as a license to venture a step towards the further claim that participants—the opponents or defenders or, perhaps, both—in the ontological dispute over the possibility of material or abstract constitution are either explicitly committed or logically inclined to subscribe to the view that the Quinean metaontologist is arguing for.105 But, fortunately, such a strong assumption is unnecessary for the purposes of my more local argument about law.
It would suffice instead to demonstrate that the majority of pluralist and monist responses to the problem of constitution can be read through the lens of a linguistically flavored Quinean metaontology without endorsing the further assumption that, necessarily, the latter metaontological position is dispositive of what is being offered as an affirmative or eliminativist solution
105 Namely, the view that a proposition carries a commitment to the existence of those entities which must feature in the proposition as the values of the variables bound by quantifiers for the proposition to be true.
138 to the problem of constitution. This modest correlation is intended to be minimally offensive to those critics or supporters of constitution that do not portray themselves as Quineans in their metaontology, or, even though they do so, their defense or rejection of the possibility of constitution is primarily based on other grounds.
This is an appropriate moment to briefly reiterate my previous remark about the purpose served by the analogy drawn between the truth- conditions of legal propositions and the truth-conditions of constitutive claims. As I briefly noted above, my rejection of the predicative (monadic and relational) and operator readings in favor of an objectual one is not verdictive in the sense that it purports to disqualify alternative semantic proposals from serving as the basis for further metaphysical argument. I will deliberately leave the door open for the legal propositionalist who remains unconvinced by my proposed regimentation. The reason I will choose to be ultimately concessive with regard to what counts as the best truth-conditional analysis of legal propositions is twofold: first, I want to reserve arguing space for anyone who finds the basic tenet of legal propositionalism appealing but remains unsatisfied with my semantic reading; second, I do believe that at least two legal philosophers, namely
Ronald Dworkin and Scott Shapiro would explicitly reject my semantic reading in favor of some concrete alternative which I will contrastively present as an error-theoretic and reductive stance respectively towards the possibility of legal, so to speak, constitution.
139 More specifically, the use I want to make of this semantic digression is argumentative and categorial. It is argumentative in the sense that my primary aim is to see how someone who favors a pictorial relation between truth-conditions whichever they are and truthmakers would proceed as soon as we have a plausible truth-conditional account on the table. There will be still room for the unconvinced legal propositionalist to come up with her own truth-conditional account of legal propositions and proceed accordingly with the postulation of the corresponding truthmakers but the result will remain indistinguishable from the metaontological standpoint of someone who rejects the conception of ontological commitment favored by the legal propositionalist. On the other hand, my semantic proposal serves a categorial function in the sense that whoever regards claims of material or abstract constitution of the form ‘A constitutes B’ as literally false falls ipso facto under the category of the (ontological) monist vis-à-vis the question of coincident objects. It is precisely this distinction between pluralist and monist responses to the puzzle of constitution that I would like to utilize in our local dispute with a view to showcasing informative but unarticulated points of convergence between positivist and antipositivist theories of law.
To see how the argumentative and categorial function of my semantic digression is supposed to operate at the level of metaphysics, I suggest that we take on board my semantic proposal of understanding legal assertions as a type of constitutive assertion. More precisely, let’s assume that the information we try to convey by engaging in various assertions of legal
140 content can be more or less directly codified in terms of the constitutive claim that a particular non-legal propositional entity denoted by the dummy sortal “the proposition that φ-ing is obligatory” stands in a relation of abstract constitution to a legal norm or the content of the law of a particular system.
Now recall that the legal propositionalist is someone who finds worth in deriving the truthmakers of legal propositions—that is, the entities to which she is ontologically committed— from their truth-conditions. If the truth- conditional content of a legal proposition can be roughly codified as “[A constitutes B] is true iff C constitutes D”, where A operates as a dummy nominalization, B stands for the referring expression ‘legal norm’ or ‘a part of the content of the law’ and C stands for a particular non-legal propositional entity and D stands for the referent of the expression legal norm or part of the content of the law, there will be two types of answer available to the legal propositionalist vis-à-vis the question of whether this constitutive proposition is true, namely, a pluralist one and a monist one. If she is willing to affirm that [A constitutes B] is literally true, it follows that she accepts that both C and D exist at the same time. Her pluralist intuition will then be supplemented by the only truthmaker that can vindicate the propositionalist intuition that truthmakers must somehow resemble truth- conditions. That is to say, she will have to posit the fact that D exists as the truthmaker of the proposition that A constitutes B. For, given her
141 pluralist conviction, as long as D exists, it is necessary that also C exists and therefore the proposition that A constitutes B is literally true.
From an ontological perspective pluralism corresponds to an instance of non-reductive realism about constitutively related objects. In our current case we take truths about the constitution of legal norms at face value thus affirming the existence of both the non-legal constituting object and the legal constituted object. Consequently, the route of connecting propositions about the constitution of legal norms to the world is to postulate the existence of facts about the existence of legal norms as the proper truthmakers of legal propositions. From a metaontological perspective non- reductive realism about constitutively related objects is a theoretical option that is strongly compatible with a quantificational conception of ontological commitment. The selected truthmaker is a token of what our theory is ontologically committed to and its constituent abstract object (legal norm) lies within the relevant domain of quantification. This way of responding to the question of what makes propositions about the constitution of legal norms true purports to protect the integrity of a domain of discourse—in our case, a theory of legal content—which makes reference to these entities.
In this way we preserve our nonnaturalist belief in the possibility of creating abstract objects by taking the truth of sentences of our theory at face value.
To animate the emerging map I will venture to classify both Mark
Greenberg’s moral impact theory of law and Joseph Raz’s exclusive positivist theory as pluralist instances of non-reductive realism. More
142 precisely, I will treat as evidence for Greenberg’s pluralism his idea of the content of the law being constitutively determined by the moral profile that the actions of legal institutions produce, or in other words, his idea that legal obligations are those moral obligations created by the actions of legal institutions. His pluralist inclination will be associated with his recurring distinction between the moral facts that obtain as a result of any kind of action on the part of legal officials and the moral facts that constitute the content of the law in what he describes as “the legally proper way”. On the other hand, I will also venture to present Raz’s theory of the impact of authoritative directives on the content of the law as an account of the constitutive relation between authoritative pronouncements and valid legal norms. The argument that I will deploy in the service of this classification is that on Raz’s account the fact that a norm is authoritatively pronounced is not modally sufficient for its being a valid legal norm precisely because legally valid norms are abstract objects that also stand in hierarchical relations to superior norms with which they may conflict (e.g., cases of unconstitutional legislation or formally deficient legal enactments).
This metajurisprudential taxonomy is not meant to deflate the stark opposition between these two theories at the level of substantive jurisprudence. It can still remain the case that Greenberg and Raz occupy radically different substantive positions on the positivism-antipositivism spectrum much in the same way that a deontological ethical theory that postulates the existence of an irreducibly normative property of rightness
143 can arrive at remarkably different conclusions about what is the right thing to do vis-à-vis a consequentialist theory that is equally affirmative of the existence of a nonnatural property of rightness. Nevertheless this metajurisprudential convergence will be an informative addition to our way of decoding the substantive dispute mainly because it facilitates the advancement of a substantive objection to both theories on the basis of their common metajurisprudential premise rather than on their substantive merits.
Fortunately, the range of options for the legal propositionalist is not exhausted by the path of staunch realism. If the legal propositionalist does not want to dismiss the veridicality of our discourse about legal norms but is at the same time suspicious of the possibility of their existence qua ontologically distinct abstract entities, she may proceed by proposing a reduction of truths about legal norms to truths about another kind of entity. If this endeavor proves successful she can come up with a theory whose sentences are not legal-norm-committing. More precisely, she will be able to declare her commitment to the entities serving as the reduction base of her legal-norm talk such that sentences like “the proposition that φ-ing is obligatory is a legal norm of S” can be eliminatively reduced into a sentence of the form “the proposition that φ-ing is obligatory is an F”. As a result, given her propositionalist inclination of deriving truthmakers from truth conditions, she will claim that properly speaking the truthmaker for “the
144 proposition that φ-ing is obligatory is a legal norm of S” is the fact that an F exists precisely because legal norms are reducible to Fs.
As I shall argue this moderate yet legal-truth-preserving strategy is not without supporters. As part of my reconstructive effort to introduce a metajurisprudential taxonomy I will try to demonstrate how Shapiro’s planning theory of law is an excellent illustration of this view. More precisely, I will treat as a token of this correlation Shapiro’s reductive plan to unpack the modal profile of legal norms by identifying them with a type of (sub)plan authorized by an institutionalized master plan. Shapiro’s strategy of reducing talk about legal norms to talk about plans serves as primary evidence of how we could elicit his own response to the question of what makes statements like “the proposition that φ-ing is obligatory is a legal norm of S” true. The latter truth will be reducible to the truth that
“the proposition that φ-ing is obligatory is a plan of S” such that literally speaking the truthmaker for the latter proposition will not be a legal fact but a fact about the existence of a particular plan. Consequently, I will suggest that Shapiro’s implicit affirmation of the possibility of constitutable plans is premised on his explicit distinction between the norms of instrumental rationality and plans qua norms such that the statement that
“the proposition that φ-ing is obligatory is a plan of S” is true iff a rational requirement to φ constitutes a plan of S. Despite the elimination of talk about legal norms and legal facts Shapiro’s position can still be construed as a reductive version of legal propositionalism precisely because it remains
145 faithful to the idea that propositional truth is ontologically committing to its constituent properties or objects.
If, nonetheless, our imaginary legal propositionalist is utterly pessimistic about the prospect of either safeguarding the existence of legal norms or offering a plausible reduction she may move on to declare all sentences of the form “the proposition that φ-ing is obligatory is a legal norm of S” as literally false. This error-theoretic response is still in line with the rationale of legal propositionalism as it is motivated by the acknowledgment that sentences about the constitution of legal norms imply the existence of facts about the existence of legal norms; as such constitutive claims about legal content must be systematically false precisely because legal norms do not exist. In a further step, the error-theorist legal propositionalist is free to suggest an alternative truth-conditional content which, nonetheless, will serve as the template from which she will read off the appropriate truthmaker. Consequently, she may “renew her vow”, so to speak, to the truth of sentences that are not ontologically offending. In other words, she may argue that we do not ordinarily use sentences about the constitution of legal content in order to assert the propositions they literally express; instead there exist genuine semantic alternatives that can assist us in expressing our true thoughts about law.
In the relevant position I will venture to classify Dworkin as a legal propositionalist who would favor an error-theoretic response to the question of whether ‘the proposition that φ-ing is obligatory is a legal norm of S’ is
146 true. More precisely, I will suggest that we read Dworkin’s claim that legal practices cannot be identified independently of the legal content they produce as evidence of his error-theoretic orientation. In other words, on the most charitable understanding of Dworkin’s interpretivist theory of law it is implausible to assign numerical distinctness to the pre-interpretive material that furnishes legal content. The inextricable tie between what
Dworkin calls the dimension of fit and the dimension of justification can be formally unpacked into the claim that we cannot disassociate what the aspects of legal practices contribute to the content of the law from legal content per se. As a result, it will be an imprecise assumption to believe that our assertions of legal content purport to communicate the constitutive interplay between pre-legal and legal entities precisely because legal content cannot be abstractly coincident with non-legal determinants.
What can a non-propositionalist or, more precisely, a truthmaker view of ontological commitment contribute to the question of what makes statements about the constitution of legal content true? As one may expect, the truthmaker theorist cannot feel content with either a pluralist or a monist strategy. She cannot be a pluralist for the simple reason that this response would ipso facto commit her to the existence of created abstract objects which is precisely the consequence one would associate with linguistic bias in favor of deriving truthmakers from truth conditions. At the same time she would not applaud a sweeping declaration of systematic falsity of a whole domain of discourse on the same grounds, namely, that
147 this declaration as it stands presupposes that there cannot exist a theory consisting of true propositions that are not themselves ontologically committal in virtue of their content. Finally, she would be timid about the prospect of solving this problem by way of reducing talk about the constitution of legal norms to talk about the constitution of Fs because this strategy would be equally vulnerable to the objection that reduction between truths is a mode of paraphrasing that is not motivated by independent ontological concerns but rather purports to preserve at any cost the ontologically committing effect of truth-conditional content.
That being said, a truthmaker theorist’s path to an ontology disembarrassed of all contingent association with theories of meaning will have to strike a course that resembles a parabolic trajectory. In our present case this can be illustrated by picturing a proposition about the constitution of legal content as a curve surrounding two focal points, the non-legal constituting object and the legal constituted object. Relative to this ellipse the truthmaker theorist will coast along an escape path such that she will once maximally approach the focal point represented by the legal constituted object but she will never return. In less figurative terms, the truthmaker theorist will pursue a compatibilist path; she will accept that propositions about the constitution of legal content are literally true but their truthmakers lie beyond the periphery of the constituents of these propositions. The theoretical option I will specify as a candidate token of the truthmaker approach to what grounds legal truths will ultimately result in
148 an antipositivist account of law. Nevertheless it is not meant to be an exclusive legal specification of this metaontological view. I will conclude this part with an open invitation for more convincing alternative—positivist or antipositivist—solutions provided that they remain consonant with the spirit of the truthmaker approach.
My compatibilist choice will be not to read off the truthmakers of legal propositions from their truth-conditions, which means that I will not posit facts about the existence of legal norms or about which obligations are parts of the set-theoretic object “the content of the law” as the proper truthmakers of legal propositions. What kind of facts, then, if not legal facts or facts about the reduction base of legal norms could be eligible for making legal propositions true? I shall argue that legal propositions are made true by facts about the enforceability of obligations or rights in a given political community. Facts about enforceability are obviously not legal facts in any sense of the word ‘legal’ nor are they the product of reducing legal norms to norms of enforcement. As I purport to explain in greater detail, I will treat enforceability as a dispositional property of obligations and rights thus rejecting any association with epistemic norms about the probability of imposing sanctions of any kind.
The analogy I will employ will be drawn from the type of solution favored by philosophers of an anti-Quinean persuasion with regard to the possibility problem about abstractly coincident objects. Their object of concern is the proper truthmaker for propositions featuring created abstract objects.
149 Whereas the Quinean would posit facts about the existence of, say, musical works as the proper truthmakers for the corresponding propositions, the anti-Quinean for whom I have already disclosed my sympathy may pursue a line of argument that does not elicit a proposition’s truthmakers from its truth-conditions.106 More precisely, she would regard as a legitimate option the postulation of facts that do not feature musical works qua abstract objects but only the intentional state of a particular individual vis-à-vis the shape of the object.
In this vein I will treat enforceability as an extrinsic dispositional property of obligations and rights. The extrinsicality of this disposition is in line with the practice-dependence of legal content as not even the staunchest natural law theorist would deny that there is anything intrinsically—that is independent of facts about the environment—possessed of “legality”. More precisely, I will suggest that sentences like ‘the proposition that it is obligatory to φ is part of the content of the law of S’ are true iff the fact that it is obligatory to φ constitutes a part of the content of the law
106 Ross Cameron makes a clear remark about the need to block immediate inferences from truth-conditions to truthmakers in his ‘There Are No Things That Are Musical Works’ (in British Journal of Aesthetics (2008) 48(3): 295-314): ‘[now], ‘there are statues is true iff there are statues. That is trivially true. But it does not tell us why ‘there are statues’ is true. Using the English sentence that is mentioned and said to be true hardly explains what makes the sentence true. My claim is that ‘there are statues’ is true but that there are no statues; and there is no contradiction there, because the sentences are sentences of different languages. ‘There are statues’ is true, I claim, because there are simples that are arranged statue shaped (as a result of the intentional actions of agents).’ (p. 301). Cameron’s talk of two languages is animated by his emphatic use of bold characters for truthmaker-denoting sentences in Ontologese (as contrasted with truth-condition-stating sentences in English).
150 of S. In contrast with the previous analyses—namely, the assignment of a non-legal abstract object or normative fact as the semantic value of the noun phrase “the proposition that…”—the semantic value I will assign to the dummy sortal the proposition that it is obligatory to φ will be the normative relation of an agent’s (or class of agents) being obligated to perform φ. My suggestion will be that what makes the latter proposition true is not the fact that a particular legal norm exists in S nor the fact that the obligation to φ is part of the content of the law of S, but the fact that an obligation to φ is enforceable in S. Whereas my account will allow the truth-conditional meaning of the sentence to feature legal norms as part of its content, the proper truthmaker of the proposition expressed by the same sentence makes no reference at all to anything endowed with legal status in any metaphysically robust sense. The only inheritance I will allow from the truth conditions of legal assertions is the referent of the dummy sortal “the proposition that that it is obligatory to φ”, that is to say, the non-legal constituent component of a legal proposition. As I hope to be able to demonstrate, this does not amount to a retreat to the familiar method of legal propositionalism because the criterion that mandates my ontological commitment to relations of obligation, permission, empowerment and prohibition as well as to the attributability of the disposition of enforceability to the former is ontological, not semantic.
The idea I will deploy can be roughly summarized as follows: the concept of a created norm cannot have a metaphysical counterpart because it is
151 ontologically spurious to posit the creation of abstract objects. As a result, the world must feature another modality that can capture the extension of this concept that is compatible with a frugal conception of what there is. In the domain of scientific discourse there is a parallel concern about the concept of a law of nature107 and the question that philosophers of science use to ask is whether statements of laws of nature can only be made true by nomological facts or whether, perhaps, our nomological talk (or N-talk) is not ontologically committing to Ns. Fortunately, there is a promising strategy that purports to preserve the veridicality of N-discourse without shouldering any commitment to entities that are not conducive to a frugal ontological understanding of our universe. According to this view, statements about laws of nature are made true by the fact that some properties have dispositional essences, that is, properties that have the same dispositional character in all possible worlds.108 Thus taking N to be
107 The scope of the analogy is obviously limited. For instance, no one would argue that if they exist, laws of nature are abstracta created by other forces. 108 Alexander Bird provides a very informative account of the basic tenets of dispositional essentialism. In his own words “laws [of nature] are not thrust upon properties, irrespective, as it were, of what those properties are. Rather the laws spring from within the properties themselves. The essential nature of a property is given by its relations with other properties. It wouldn’t be that property unless it engaged in those relations. Consequently those relations cannot fail to hold (except by the absence of the properties altogether, if that is possible). The laws of nature are thus metaphysically necessary” (in his Nature’s Metaphysics: Laws and Properties, Oxford: Clarendon Press, 2007, p. 2). Dispositional essentialism takes its cue from a proposal by Sydney Shoemaker (‘Causality and Properties’ in P. van Inwagen (ed.), Time and Cause, Dordrecht: Reidel, 1980, pp. 109– 35). It was developed as a view of laws by Chris Swoyer, ‘The Nature of Natural Law’ in Australasian Journal of Philosophy (1982) 60: 203–23), and has more recently been extended and promoted by Brian Ellis (Scientific Essentialism, Cambridge: Cambridge
152 the property being negatively charged and P the property being positively charged we might say that a sentence expressing the proposition about
Coulomb’s law is made true by the fact that in all possible worlds any object that possesses N is disposed to repel any other object that is also N and attract object that is P. Consequently, the truthmaker of the proposition about Coulomb’s law will be a dispositional, not a nomological fact.
The audacious analogy I will pursue will be exemplified by the claim that legal propositions are made true by dispositional rather than legal or norm- like facts.109 I will try to keep this association as humbly proportionate as possible mainly by way of putting things into context. More specifically, I shall adopt a normative canonical analysis of the concept of enforceability such that to say that an obligation to φ is enforceable in S is to say that the obligation to φ is disposed to validate trust among members of S in the agent-neutrality of the reasons that support φ-ing. I will associate the manifestation conditions of enforceability understood as trust-validability with actual instances of fulfilling duties, exercising liberties or powers and enforcing claims or immunities.
University Press, 2001 and The Philosophy of Nature, Chesham: Acumen 2002). A similar metaphysics is expounded by Harré and Madden (Rom Harré and E.H. Madden, Causal Powers: A Theory of Natural Necessity, Oxford: Blackwell, 1975) and latterly by George Molnar (Powers: A Study in Metaphysics, Oxford: Oxford University Press, 2003). 109 By talking of norm-like facts I wish to preserve Scott Shapiro’s account of legal norms as plans within the broader legal propositionalist context. Whereas his metaphysics do not literally host legal norms, they do host norms in the form of plans. In this sense his argument is not a radical departure from the idea that talk of norms of whatever kind is true relative to facts about these norms.
153 B. Grounding the Truthmakers
The first part of my thesis will end up with what the standard methodology in legal metaphysics takes as its starting point, namely, the question of what grounds the truthmakers of legal propositions. As previously noted, half of the purported merit of this exposition is to explore the territory that lies behind the area in which we ordinarily look for the grounds of law. But this is not meant to be oblivious of the other half of this quest that could hopefully make this exposition worth reading. By now I think that I have earned access to some basic vocabulary that can facilitate the substantive conclusion of this part. I have attempted to depict a gradual descent from the more formal concerns about the logical form of legal propositions to a less formal concern about their proper truthmakers. The last step will lead to the ground floor of this discussion that lies at the level of substantive jurisprudence. In this final section I will try to strike a balance between a reconstructive component aimed at regimenting some of the available jurisprudential theories of the grounds of law and an original component aimed at exploring the categorical facts that could ground the dispositional truthmakers of legal propositions.
In the light of my previous attempt to offer a metajurisprudential taxonomy of views that transcends the positivism-antipositivism divide I have singled out two, or perhaps two and half, candidate types of fact that
154 could make legal propositions true. I have talked about two standard instances of legal facts, namely atomic facts about the existence of legal norms and holistic facts about which obligations, rights or powers are part of the content of the law in a given system. Moreover, I have adumbrated
Shapiro’s reductive understanding of legal facts in terms of facts about the obtaining of subplans and I have briefly commented on why this type of fact, albeit not literally legal, is still the output of the same inferential reasoning that starts from an implicit acceptance of the basic idea of legal propositionalism. Finally I have dared to supplement the inventory of legal truthmakers by adding facts about enforceability as a plausible non- propositionalist candidate.
Even though I have not been repetitively explicit about this assumption, I have taken for granted all along that I purport to understand truthmakers in their standard classification as facts. It is via this categorization that I aim to exploit the insights of the burgeoning literature on the relation between grounded and grounding facts. As I previously noticed, I believe I have already deployed the necessary vocabulary to venture this final step. As evidence for this claim I can adduce the fact that both pluralist and monist responses to the problem of constitution are fashioned as candidate explanations of what is commonly described as the grounding problem about material or abstract constitution.110 After all this
110 For the explanatory challenges facing constitutionally related yet modally distinct objects, see K. Bennett, ‘Spatio-Temporal Coincidence and the Grounding Problem’ in Philosophical Studies (2004) 118:339-71. In Bennett’s words, ‘[t]he grounding problem, then, is this: in light of the fact that spatio-temporally coincident things have all of their
155 is precisely the kind of finale we would expect to occur once we are back to discussing about the grounds of law. To this effect I will be talking about the grounding problem about law as a local instance of the grounding problem about constitution.
The idea is to present the legally adapted version of the grounding problem as a substantive jurisprudential question that emerges as soon as we take on board the idea that the content expressed by legal utterances could be likened to the content expressed by claims of material or abstract constitution. On this new picture, the grounding problem about law will appear as a local version of what is known in general metaphysics as the grounding problem of coincident objects. As I will explain immediately below, I will insist in defending only the counterfactual association of the truth-conditions of legal utterances with the truth-conditions of claims like
“this lump of clay constitutes Goliath, the statue” for the reason that the service I intend to attribute to this proposal is illustrative rather than verdictive.
To see how the controversy over the relation between spatiotemporally or abstractly coincident objects such as a lump of bronze other properties in common, in virtue of what do they have the sortalish properties they do?’ (ibid, p. 341-2); Bennett has coined the term ‘sortalish’ in order to capture the whole range of the puzzling properties that are distinctly allocated to constituting and constituted objects, including their persistence conditions, particularly their modal properties like being essentially shaped about like so, their kind or sortal properties, as well as the properties that things have partially in virtue of their instantiation of properties of the former two sorts; see also Louis de Rosset, ‘What is the Grounding Problem?’ in Philosophical Studies (2011) 156:173-97.
156 and a statue or a sound pattern and a musical piece can animate our local controversy over the grounding of the truthmakers of legal propositions, it is imperative to begin with a brief comment the intricacies of constitution.
As already noted, one of the major puzzles that seem to have been keeping the controversy over statues and musical works alive is the distinctness of the modal and sortal profiles of two otherwise perfectly identical objects.
So, for instance, a statue and the piece of bronze out of which it is made share the same space at the same time, have the same fundamental components (molecular structure), the shape weight, shape, color, texture as well as the same extrinsic properties, like the property of being placed in a museum room or the property of being 5 meters from the room’s entrance. At the same time, the lump of bronze and the statue seem to be strikingly divergent with regard to their persistence conditions—the lump of bronze but not the statue can survive being squashed because the latter but not the former is essentially shaped about like so whereas the former is accidentally shaped thus and so—,and their sortal or sortal-related properties—for instance, a particular statue qua statue may be worth a fortune and be aesthetically sublime even though the piece of bronze is of negligible monetary or aesthetic value.
Keeping analogies in sight is it plausible to think that the challenge for
“legal constitution” can be articulated by means of the same problematic pairing of intrinsic/extrinsic similarity and modal/sortal disparity? A brief examination of the available readings of this relation can confirm our
157 suspicion. To facilitate the illustration I will briefly scrutinize one positivist and one antipositivist modeling of legal constitution with a view to showcasing that irrespective of their truth-conditional analysis statements of legal constitution pose a challenge that is similar to the one faced by monist and pluralist accounts of material constitution.
On one available positivist interpretation statements of the form “the proposition that it is obligatory to φ is a legal norm of S” express the proposition that an authoritative directive to φ constitutes a legal norm of S.
Thus, provided that this statement is true, the abstract object authoritative directive to φ stands in a relation of abstract constitution to the abstract object legal norm of S. Their intrinsic similarity becomes immediately apparent by noticing that they share the same propositional content, namely, the obligation to φ. Moreover, they do not seem to differ from the point of view of their extrinsic properties; for instance, both are amenable to the same institutional practice (S). At the same time, their modal profiles are strikingly divergent: the issuer of an authoritative directive employs the imperative mood to express the obligation to φ, whereas the constituted legal norm refers to the same obligation in the declarative mood.
Consequently, they also differ with regard to their satisfaction conditions: the imperative speech act of issuing an authoritative directive is satisfied just in case it is obeyed, whereas the assertable content of a legal norm is true if it meets its target of capturing how things are. From a sortal perspective, the differences are even more perspicuous: legal norms are
158 essentially valid whereas authoritative directives only contingently so as it is always possible for the latter to become devoid of normative consequences if they conflict with directives instantiating superior norms.
An antipositivist way of exemplifying the same relation is not radically different with respect to the puzzle it produces. For the sake of the argument we can sample the model of legal constitution that could plausibly accommodate Greenberg’s moral impact theory of law. As noted earlier, a charitable semantic regimentation of the latter theory would entail that [the proposition that it is obligatory to φ is part of the content of the law of S] is true iff the fact that it is obligatory to φ constitutes a legal obligation in S.
Whereas in the previous example we had an abstract object (authoritative directive) as the constituting object, in the present example the dummy sortal [the proposition that it is obligatory to φ] is taken to refer to the normative fact that it is obligatory to φ. Moreover, instead of the atomic reference to legal norms we have assumed that a holistic reference to the content of the law is more in line with Greenberg’s antipositivist account.
Despite different appearances, this alternative parsing is fraught with the same riddle.
On the one hand, both the constituting normative fact and the constituted legal content have the same compositional structure. At the extrinsic level they also stand to the same triggering relation to the actions (sayings, doings, thoughts) of particular legal officials: the activity of the latter changes the morally relevant circumstances thus affecting both what we are
159 morally and thus legally obligated to do. From a modal perspective, however, the distance between normative facts and (parts of) legal content seems to grow exponentially. In Greenberg’s own jargon, legal obligations are not just any moral obligations that are created by the actions of legal institutions but only those moral obligations that are produced in the
“legally proper way”. As a result in paradoxical cases where the actions of legal officials result in a deterioration of the moral situation in a way that creates a moral obligation to compensate for the bad government action, the latter moral fact fails to constitute a part of the content of the law.111
Consequently, the fact that the government is obligated to provide compensation will necessarily obtain whereas no legal obligation to compensate will manage to “survive” the paradoxical impact of legally improper gerrymandering of the moral profile.
The sampling of these two jurisprudential accounts of legal truth serves to illustrate a broader picture of the affinity between instances of legal constitution and more familiar instances of material or abstract constitution. The same affinity can be demonstrated by extending our contemplation to how these modal/sortal differences are grounded.
Recalling the distinction between monist and pluralist responses to the problem of constitution the solution to the grounding problem can be either deflationary or truth-preserving respectively. That is to say, a monist will deflate the grounding challenge posed by our constitutive discourse by
111 Cf. Mark Greenberg, ‘The Moral Impact Theory of Law’, in Yale Law Journal 123(5): 1288-1342, p. 1321-23.
160 arguing that there is no such relation of material or abstract constitution.
As a result, what is amenable to grounding will be the family of facts that the particular monist account allows to remain “intact” after the denial of constitution. On the other hand, a pluralist response will take the grounding problem at face value thus aiming to demonstrate that constitutive claims are made true by facts about the existence of statues or musical works and that the latter are grounded in more fundamental facts.
At this point, a caveat is in order. Literally speaking, there is not only one constitution-related fact that calls for grounding but a cohort of facts purporting to describe aspects of an one and the same instance of material or abstract constitution. Thus, the fact that a statue is worth a million dollars, the fact a musical work cannot survive an extensive alternation of its sound sequence, the fact that the statue of Goliath is essentially shaped thus and so or the fact that a lump of clay is contingently Goliath-shaped are all in need of grounding in a way that makes our constitutive discourse intelligible. That being said, consistency requires that if we want to be pluralists about the existence of constitutively related objects all these facts orbiting around a single occurrence of constitution be partly grounded in the more fundamental fact that a statue of Goliath exists at time t. On the other hand, if we choose a monist refutation of our constitutive discourse the only facts amenable to grounding will be facts pertaining either to the properties of the constituting object or the properties of the constituted object depending on which of the two objects we decide to strike out from
161 our existential inventory. In the latter case these peripheral facts will be partly grounded in facts about the existence of the constituting or the constituted object respectively.
In the light of these clarifications it is reasonable to expect that the legal adaptation of the grounding problem will yield different solutions varying with one’s monist, pluralist or compatibilist convictions. To reiterate this distinction, a monist legal propositionalist will pursue a deflationary strategy by way of denying that there is any distinctly constitutive problem of grounding. Her response will consist in offering an account of the grounds of existence of either the constituting object or the constituted one.
By contrast, a pluralist legal propositionalist will affirm the reality of the problem by seeking to explain what grounds the fact that the constituted object exists. Recall that the grounding of this existential fact is more fundamental vis-à-vis the grounding of the ensuing facts about the modal and sortal differences between the constitutively related objects. As a result, it will suffice as a partial basis for providing a solution to the grounding of all these concomitant facts. Finally, the legal compatibilist will acknowledge the veridicality of our constitutive discourse but she will decline to affirm that it makes any sense to acknowledge the existence of a constitutive problem of grounding. She will be entitled to this kind of response given that her favored truthmaker facts will not engender the same grounding intricacies as those caused by the acceptance of facts about the existence of created abstract objects.
162 To adumbrate some of the details that will follow, I will again avail myself of the insights borne out by the four exemplary theories of law I have been referring to all this time, namely, Dworkin’s interpretivist theory of law,
Raz’s authority-based account of law, Greenberg’s moral impact theory of law and Shapiro’s planning theory of law. As a fifth supplement to this picture I will take the liberty of inserting an alternative proposal based on my suggestion to take the truth of legal statements to be grounded in facts about enforceable obligations, powers and rights. Despite my intentional association of the first four theories with the view I have described as legal propositionalism it will become evident that the reconstruction of their responses to the grounding problem of legal constitution will be amplified enough to deliver substantially different solutions that will remain consonant with each theory’s positivist or antipositivist background.
Whereas it is my aspiration to present the conclusion of this part as a robust refutation of the adequacy of utilizing the positivism-antipositivism divide as a guide to first-order theories of legal grounding I will make a conscious effort not allow this to “contaminate” my premises. I will be devoting a considerable amount of arguing space for alternative paths until the very end. The picture I hope to come up with by the end of this exposition is not meant to diffuse the controversy over the grounds of law as a red herring; what my re-descriptive approach, so to speak, purports to do instead is to re-graft it into an alternative conceptual frame and also allow
163 its enrichment with a new proposal that lends support to the antipositivist side of this conflict.
Throughout this exposition I will be preserving my faith in the fruitfulness of this re-description in the hope that its plausibility will become more visible as I will be moving from more to less modest premises. More precisely, what I hope to be able to render more visible is the possibility that we may have been roaming about in the periphery rather than the core of the problem and that what is primarily responsible for this circular drift is our choice of legal facts as our signposts. As already noted I will attempt to infuse this claim with some more substantive content by attaching this standard way of signposting to what I believe to be an erroneous metaontological view of ontological commitment. In the end what I hope to have gained by inviting reader’s attention is to offer an alternative route to the ultimate grounds of law by refuting the widely shared ontological commitment to the reality of legal facts on metaontological rather than substantive grounds.
164 CHAPTER II
Legal Propositionalism
Despite the fact that in most cases reference to pure metaphysical argument is rather opaque in the contemporary literature on the nature of law, it is my aspiration to show that the unfamiliarity of using a robust metaphysical language in jurisprudential debates is not an accurate depiction of what is actually being presupposed by participants in these debates. It is my firm impression that although there is an apparent parsimony in the unmediated application of metaphysical notions (such as properties, universals, tropes, states of affairs, relations, de re modality etc.) to the domain of jurisprudence, there is an incremental allusion to
165 questions of existence or fundamentality that cannot be dispensed with without downplaying the intricacies of ongoing disputes about the relation of law to morality and the determination of legal content.
As I aspire to demonstrate, my categorization of positions in legal metaphysics does not adhere to the stringency of demarcations in metaphysics proper precisely because I do not intend to ascribe any robust ontological commitment to proponents of different accounts of the nature of law. Given the uneven and sparse deployment of ontological arguments in law, I shall confine myself to venturing a rather loose and metaphysically inaccurate classification of prominent contributions to the debate on the nature of law. As mentioned above I shall be using legal propositionalism as a blanket term for all those foundational theories of law that irrespective of their fluctuating allegiance to robust metaphysical commitments or terminology are nonetheless approximating an ideal or counterfactual understanding of law or, alternatively, are conducive to a demystification of law’s relation to practical rationality and social ontology.
There is no doubt that potentially obfuscating classifications cannot unqualifiedly deserve the characterization of being informative about the ambit of their ontological connotations but that is not my primary target.
My goal is rather to begin by developing the relatively weak premise on which legal propositionalism is founded and then try to show that what is entailed by making such a modest start is far from being metaphysically innocuous. Making a plausible case about how impactful a relatively thin
166 assumption about the determination of legal content can be will be my
(confessedly skewed) way of inviting legal propositionalists to acknowledge their more or less overt metaphysical commitments. In that sense, my exposition of legal propositionalism is first and foremost a deployment of a series of hidden premises supporting a fairly thin account of legal truthmaking and only at a later stage will I attempt to advance a rejoinder to different strands of legal propositionalism, including major contemporary representatives of both a positivist and antipositivist conviction.
So how would the adaptation into the legal reality of the metaontological dispute about the grounds of ontological commitment look like? Recall that my initial invocation of this aspect of metaphysical discourse was meant to serve as the formal ground for a re-description of a reconstructed point of convergence between legal positivists and antipositivists which I termed legal propositionalism. More than that, my optimism has been audacious enough to baptize the local version of quantificationalism about ontological commitment legal propositionalism without unpacking it beyond the claim that legal propositionalists are very quick to take on board the reality of legal facts. Obviously I need to inject more content to my talk about legal propositionalism before allowing the re-description of what is at stake on the basis of conceptual tools imported from general metaphysics.
Making my talk of legal propositionalism more explicit is the first substantive task that this exposition aspires to deliver. This will require more space than what may have been implied by the ease of my association
167 of legal metaphysics with topics in general metaphysics. As a first remark I should repeat that my allusion to the possibility of demarcating a distinct domain of purely metaphysical questions about law is far from being a common platitude among legal philosophers. To be frank it is a very strong premise to begin with! Consequently, bringing my methodological proposal to fruition will have to wait until I have adduced enough evidence in support of the idea that notions like propositions, truthmakers and grounds are already inscribed in our jurisprudential vocabulary.
That being said, one need not subscribe to the arguments brought forward by proponents of legal realism in order to be entitled to feel suspicious about the cogency of engaging in legal metaphysics. Joseph Raz has been an optimist about the prospects of gaining insight into the concept(s) of law as it is being used within parochial societal contexts, but he has been rather reluctant to extend his faith to the possibility of discovering law’s essential or transworld properties beyond and above our mundane understanding of past or extant legal systems. It would be no exaggeration to say that the popularity of conceptual analysis as a methodological tool for dealing with foundational questions about law at least partly reflects a tacit aversion to engaging in ‘immodest metaphysics’.
Even though it is a matter of debate whether conceptual analysis in law amounts at least to a modest metaphysics or conversely supplants any metaphysical quest, I should be willing to recognize that talk of legal
168 metaphysics is far from being an established element of the common jurisprudential parlance.
Before moving further with my critical appraisal of the propositionalist approach to legal metaphysics I would like to offer some evidence in support of my intuition that irrespective of the overtness of one’s engagements in metaphysical arguments in law there is a widespread allusion to a metaphysically nuanced conception of the relation of legal propositions to the nature of law. For instance, standard defenses of legal positivism—both in its exclusivist and its inclusivist parsing—readily confirm the propositional nature of legal content.112 On Scott Shapiro’s planning
112 A more delicate question that marks the beginning of a rigid division of opinion among legal cognitivists regards the origin of the propositional structure of legal content. For instance, legal philosophers influenced by recent advances in speech act theory maintain that the propositional content of legal exhortative utterances (“what the law says”) just is the assertive content of what is commonly known as legal propositions. More accurately, on this view legal propositions are the truth-evaluable component (if it is available) of performative statements. The analogy that informs this association is frequently showcased by appeal to the case of promissory statements. When I utter the sentence 'I promise to X' two things happen: (i) I say something and (ii) my saying so brings into existence something else (a valid promise). On this picture the propositional contribution of a performative utterance is the propositional content of what is being constituted by the particular utterance. In the case of promising what is being constituted by a promissory utterance of the form ‘I promise to Φ’ is a promise. The latter is an abstract object endowed with a propositional content of the form 'I commit myself to acquiring the intention to do X'. By the same token proponents of the exhortative view of legal content argue that a legal proposition just is the propositional content borne by what is being constituted by a legal enactment. In other words, a legal proposition just is the propositional content of a legal norm. The latter is an abstract object that purportedly stands in a relation of abstract constitution to an authoritative directive. Consequently, the propositional contribution of a legal directive of the form ‘A Φs in circumstances C’ is the propositional content of the legal norm constituted by this directive, namely, the proposition that ‘A is required to Φ in
169 account of law’s there is no hesitation to admit that there is such a thing as true propositions of law such as ‘that the United States Constitution determines the authority structure of the federal government and is legally binding on all officials’ and instead of challenging the propositional nature of this statement he declares that his ‘aim will be to figure out why this proposition is true: What makes it the case that the United States
Constitution is law in the United States?’113. In the anti-positivist camp
Ronald Dworkin’s seminal distinction between propositions of law and the grounds of law is presumably the most original depiction of the centrality of legal propositions and their grounding.114 circumstances C'. For an overview of this approach see Andrei Marmor, The Language of Law, Oxford: Oxford University Press, 2014, pp. 61-84. In the third chapter of the first part of the thesis (entitled ‘A Semantic Digression’) I shall argue that what matters in terms of truth-evaluation is not the propositional content of what is being constituted by the performance of a speech act but the obtaining of the constitutive relation between what someone uttered and its ontological output, so to speak. Whereas the positivist association of legal propositions with the content of legal norms favors the detachment of the referent of what constitutes legal norms (i.e., authoritative directives or “because the law says so”) from the content of a legal statement and re-incorporates it in its truth conditions. The problem with this detachment is that constitution is not a form of truthmaking nor does it hold between facts about someone’s utterance and the property of being true but rather between abstract (or material) objects. A proper response to this misconception would be to preserve the informational relevance of constitution but allow it to figure in the content of legal assertions. 113 See S. Shapiro, ‘Law, Plans, and Practical Reason’ in Legal Theory 8 (2002), p. 387.
114 Likewise, Mark Greenberg’s anti-positivist metaphysical task regards ‘the full metaphysical explanation of the content of the law (of why certain legal propositions are true)’ which is to say that the claim that ‘there is a substantial body of determinate legal content [means that] there are many true legal propositions (in the particular legal system)’. See M. Greenberg, ‘How Facts Make Law’ in Legal Theory (2004) 10 (3) pp. 159 and 162 respectively.
170 What actually elevates an apparently impenetrable wall between positivist and anti-positivist theories of law is not their questioning of the possibility of legal facts as the truthmakers of legal propositions but their starkly opposing conception of what grounds legal facts themselves. Put in different terms, among legal philosophers of a cognitivist conviction there seems to be ample room for convergence on the “fact” that there is such a thing as legal propositions or truth-evaluable legal content and that the best way to capture the relation of legal propositions to their truth status is by appeal to the notion of legal facts. The rest follows as a sequel to a story already known, namely, that the onerous task for the legal philosopher begins at the moment where legal facts call for their grounding. This is exactly the moment where the symptoms of what I have chosen to label as legal propositionalism start to acquire diagnostic value.
II.1. Outlining the Borders of Legal Propositionalism
The preceding remarks on the alternative paths one may take in her pursuit of legal truth serve to highlight the point that there seems to be a minimal convergence of friends of positivism and antipositivism that true legal propositions exist and that they are somehow related to the obtaining of legal facts. This is the minimal content of what I have previously referred to as legal propositionalism.115 Beyond this minimal common point of
115 In what follows I will qualify this content by apportioning it to three interrelated theses.
171 departure there can be two varieties of disagreement only one of which I presume that it would be taken by legal philosophers as meriting their attention.
Arguing over the nature of legal truth would be an eligible topic for legal philosophers in the cognitivist tradition but I doubt that it would carry the discussion way beyond merely conceptual skirmishes. For instance, we could imagine a theoretical dispute over whether to assert a true legal proposition just is to assert the obtaining of a legal fact, or by contrast, to assert the truth of a legal proposition is to make a claim about the latter’s correspondence to a world-bound legal fact. This would be an applied version of the definitional—in the metaphysical sense—dispute over the nature of truth and no matter how logically conceivable this dispute may be,
I certainly doubt that any legal philosopher would confirm her willingness to engage in this debate as if it were an essential component of any discourse in legal metaphysics.
As already explained in section I.3, legal philosophers might—even though I doubt they would ever explicitly embark on this quest—disagree about the relation of legal truth to reality, or alternatively, the nature of legal truth. I have somehow expeditiously taken a stance in favor of a deflationary account of legal truth by way of arguing that it suffices to spark some intelligible controversy among legal philosophers who in one way or another believe that the grounds of legal truth are extra-propositional or nonlinguistic in nature. That being said, it would be an unfair move to
172 forestall anyone’s sincere proclivity to experimenting with a neo-Fregean account of legal facts such that the ensuing dispute over their grounds becomes a question of what best explains the concept of a legal norm. For the neo-Fregean legal philosopher116 legal facts would feature concepts rather than properties or objects as their constituent parts. Taking on board a standard version of the Fregean context principle it could turn out that only within the context of a legal utterance does the concept of a legal norm acquire meaning. As a result any further question with regard to the existence status of legal norms is sanctioned as a futile attempt to detach the lexical item legal norm from its propositional environment thus violating the context principle.
On a very broad understanding of legal propositionalism the neo-Fregean legal philosopher could be classified as a deviant case thereof precisely because, like the Quinean legal philosopher, she purports to decipher the question of what exists by answering the question of what the truth conditions of legal sentences are. But beyond this minimal point of convergence the neo-Fregean pursues a radical departure from non-trivial appeals to existence. On the latter (neo-Fregean) view, legal facts may exist not in virtue of their being part of the fabric of reality but because they can be successfully accommodated by our privileged conceptual scheme. On this picture, of course, there will be no room for grounding talk as there will
116 Carsten Heidemann provides a pithy reconstruction of Hans Kelsen’s theory of norms premised on a linguistic account of facts about the existence of legal norms as true legal judgments; see his Die Norm als Tatsache: Zur Normentheorie Hans Kelsens, Baden- Baden: Nomos, 1997.
173 be no distinction between truth-bearers and truth-makers. A Fregean fact is nothing more than a true thought and as such it falls short of standing in grounding relations to other Fregean facts.
At this juncture and despite the fact that my metaontological reconstruction of legal disagreement will be premised on a deflationary conception of truth that can accommodate the existence of worldly facts as truthmakers, fairness in argument obliges me to sketch a possible detour from the project I purport to lay out. In the likeness of its traditional application in the ontology of arithmetic a neo-Fregean account of the metaphysics of law could represent the grounding analogue of the relation between legal facts and their determinant non-legal facts by means of an abstraction principle. The latter principle will express a bridging, so to speak, conceptual fact about when certain obligations, rights, powers and so on necessarily obtain. The structure of this conceptual fact can ordinarily feature a universally quantified biconditional denoting a function from facts cast in sociological vocabulary to facts cast in jurisprudential vocabulary.
This is a purely mental process that purports to attain a new idea of an abstract object by contemplating over other objects and attempting to abstract therefrom the features that distinguish them. To illustrate this option we could perhaps reconstruct Shapiro’s process of reducing legal norms to plans in a non-ontologically loaded way such that by observing institutional and non-institutional practices of planning agency we push aside or abstract from the respects in which they differ, thereby acquiring
174 an abstract conception of “legal norm-hood”. This can work if we consider the case that the singular term legal norm has the logical form of a functional expression such that we can talk about a legal norm to the effect that X. This can be read as a function from an abstract object to a type of action. If, as expected, a legal norm designates an abstract object there may exist an equation (abstraction principle) such that we get a functional regimentation of the form (x)(M)(∑(x)= ∑(M⊃x)↔E(x,M)) where x is a variable denoting act-types, M is a plan-denoting variable, ∑ is a functional operator and E is an equivalence relation over items of the given type. To illustrate this description, let’s assume for a moment that
Shapiro would be eager to impersonate the neo-Fregean legal philosopher I have in mind.117 Then he could proceed to defend the following conceptual claim (call it CC):
A legal norm X = a rational requirement that {if one accepts M, one
X’s} iff X-ing is authorized by a shared master plan M
117 David Plunkett offers an extensive account of how Shapiro’s Planning Theory can accommodate Greenberg’s rational determination requirement by way of assigning to conceptual truths the role of making intelligible the determination of legal facts by social facts. Plunkett’s analysis is geared towards engaging Greenberg’s own terminology but nothing in his line of reasoning prevents us from taking the intelligibility-enabling role of conceptual facts to be understood in terms of a more familiar abstraction principle provided that Plunkett’s reading of Shapiro can do without the literal use of the concept of grounding. See David Plunkett, ‘A Positivist Route for Explaining How Facts Make Law’ in Legal Theory (2012) 18 (2):139-207.
175 The idea then will be that CC’s being an explanation of the concept of a legal norm, the existence of a legal norm requires nothing more than that a course of action required by the norms of instrumental rationality is authorized by the shared master plan of a planning organization. The two sentences flanking the biconditional are somehow identical in terms of the content they express. Consequently, for the neo-Fregean legal philosopher grounding just is a form of reconceptualization. Being poor with words capable of summarily reviewing the background of this strand of thought I will rely on a pithy description of the process of reconceptualization offered by Bob Hale and Crispin Wright; according to their viewpoint this process is premised on the idea that “it is permissible to fix the truth-conditions of one kind of statement as coinciding with those of another—“kind’ here referring to something like logical form—in such a way that the overt existential implications of the former exceed those of the latter, although the epistemological status of the latter, as conceived in advance, is inherited by the former”.118 In the present example, the statement that is fraught with existential implications is the left hand side sentence that a particular legal norm exists. Thus the neo-Fregean legal philosopher will arrive at the conclusion that a particular legal norm X exists in S just by reconceptualizing the sentence “X is authorized by the shared master plan
118 Bob Hale and Crispin Wright, ‘The Metaontology of Abstraction’ in D. Chalmers, D. Manley and R. Wasserman (eds.), Metametaphysics: New Essays on the Foundations of Ontology (Oxford: Clarendon Press, 2009), pp. 178-212, at 181; for an earlier formulation of this position see their The Reason's Proper Study : Essays towards a Neo-Fregean Philosophy of Mathematics, Oxford: Oxford University Press, 2001.
176 of S”. A good instance of reconceptualization will be one where truth conditions are preserved right to left across the abstraction schema.
The metaontological implication of this strategy is indeed strikingly similar with the quantificational understanding of legal propositionalism, yet it falls short of counting as a focal instance of the latter mainly because not only does it countenance the dependence of reference on truth but takes the further step of trivializing the prospect of ever exiting into the extra- linguistic space. Since we are dealing with linguistic entities any resort to the vocabulary of grounding will retain its intelligibility on the explicit condition that we take it to be nothing more than a form of conceptual translation. From this perspective the ontological commitment to the reality of legal norms is conceptually necessitated by the sameness of truth conditions across the biconditional. The argumentative challenge for the neo-Fregean legal philosopher lies in substantiating her claim that the content expressed by the sentence that X is authorized by the shared master plan of S is informatively reconceptualizable and this is not a trivial task.
II.2. Relating Legal Propositions to Legal Facts
Leaving behind this lengthy prelude, I shall begin by rehearsing the argument of how one may identify herself as a legal propositionalist. At first approximation a legal propositionalist perceives her foundational work as a
177 task that involves the derivation of the truthmakers of legal propositions from the logical regimentation of assertions of legal content. That is to say, her foundational quest can be traced back to explaining the truth of simple statements such as ‘In the State of California any person who, by means of deceit, intentionally deprives another person of property worth more than a thousand dollars shall be imprisoned for not more than six months’ in terms of the postulation of a legal fact that depicts the logical structure of this sentence.
Consequently, the legal propositionalist’s foundational work is a composition of a semantic and an ontological task. The semantic task corresponds to the process of refining the logical structure of assertions of legal content. In the immediately following section III entitled ‘A Semantic
Digression’ I will specifically address the challenges that emerge in the process of regimenting legal assertions cast in natural language up to the point of revealing their logical structure. The ontological task that becomes relevant upon the completion of the semantic task purports to provide a concrete verdict on the veridicality of the propositional content expressed by ordinary legal claims. As previously noted119 this challenge amounts to choosing between three cognitivist responses to the question of whether a proposition of the form “the proposition that it is obligatory to φ constitutes a legal norm (or part of the content of the law) of S” is true. To recall this distinction, there can be three varieties of legal
119 See section I.5.2.A.
178 propositionalism, namely, non-reductivism about legal norms, reductivism about legal norms and an error-theoretic variant.
All three responses count as instances of legal propositionalism insofar as they ultimately purport to derive a truthmaker from some account of truth conditions. Their difference lies in the immediacy of their result. A non- reductive realist about legal norms will take a truth of the form “the proposition that it is obligatory to φ constitutes a legal norm (or part of the content of the law) of S” at face value such that it will become immediately evident for her that what makes it true is the fact that a particular legal norm exists. A reductive realist will take a more oblique path by supplementing her foundational work with a reduction of the constituted object to an object whose existence is not ontologically “offending”.
Following this detour, she will return with a revamped version of the relevant proposition of the form “the proposition that it is obligatory to φ constitutes X” and postulate the existence of X as its truthmaker. Finally, the error theorist will be the one who will have to take the longest detour as her departure point will be the claim that “the proposition that it is obligatory to φ constitutes a legal norm (or part of the content of the law) of
S” is literally false. Given her dismissive response she will have to offer an alternative propositional template whence she can derive what purports to be the correct truthmaker.
That being said there remain two further issues I should be flagging in good faith. Both pertain to the methodology of legal propositionalism rather
179 than its substantive content and as such they are conceptually linked with the possibility of making sense of the process of deriving legal truthmakers from legal truth conditions. Both issues regard the modal profile of legal propositions. Firstly we should ask whether legal propositions can be true as a matter of metaphysical necessity. This possibility could seriously compromise the propositionalist project as it is notoriously perplexing to make a plausible case for the claim that necessary propositions are literally made true by extra-propositional entities. Secondly, we should ask whether legal propositions can be true as a matter of conceptual necessity. This is not the same question as the one we addressed in the previous section
(II.1). Whereas the previous question was about the implications of taking the content of legal propositions to be composed of concepts, the present question is about the implications of taking the truth of legal propositions to be conceptually necessitated.
With regard to the first question I should note that legal propositionalism becomes intelligible only if we agree that predications of legal content are contingent. Contingent predications like ‘Socrates is wise’ are usually contrasted with predications of essential properties (or relations) such as
‘Socrates is human’. Whereas in the latter case the existence of Socrates qua concrete particular grounds the truth of the proposition that Socrates is human, in the former case Socrates cannot be regarded as the truthmaker of ‘Socrates is wise’.120 There are possible worlds in which the individual
120 I have borrowed this illuminating example from Michael Bergmann’s and Jeffrey Brower’s ‘A Theistic Argument against Platonism (and in Support of Truthmakers and
180 ‘Socrates’ might have existed and still not possessed wisdom. For friends of truthmakers, contingent predications are made true either by universals or by exemplifiables (tropes). Hence in our example, the proposition that
Socrates is wise is made true either by the fact that Socrates bears the property of wisdom or by the trope ‘Socrates’ wisdom’.
My corresponding intuition is that legal propositionalists also perceive predications of legal content as contingent predications. Mark Greenberg accurately depicts this intuition when he says that ‘no legal-content facts are plausibly metaphysically basic or ultimate facts about the universe…like facts about the meaning of words or facts about international exchange rates…[they] hold in virtue of more basic facts’121. To illustrate this point let’s take the utterance that in the Hellenic Republic pet owners are legally obligated to register their pets in the electronic inventory of their municipal residence. For the sake of the argument, we may provisionally assume that the logical form of this proposition is the one schematically defended above in section I.5.1.C, namely: “the proposition that pet owners are obligated to register their pets in the electronic inventory of the municipal residence is a legal norm of the Hellenic Republic”. Retrieving my previous suggestion about the truth conditions of such statements we can imagine how the argument would go if we further assumed that a Razian semantic account of the referent of the dummy sortal the proposition that… is correct. The truth
Divine Simplicity)’ in Dean W. Zimmerman (ed.), Oxford Studies in Metaphysics Volume 2 Oxford: Oxford University Press, 2006, pp. 357-86, at 380. 121 Mark Greenberg, ‘How Facts Make Law’, supra note 3, p. 158.
181 conditions of our exemplary sentence would be given by the following structure:
An authoritative directive to the effect that pet owners register their pets in the electronic inventory of the municipal residence constitutes a legal norm of the Hellenic Republic
By the very lights of what the possibility of abstract constitution entails it is a conceptual truth that if constitution is possible constitutively related objects can never be essentially related thus and so. The reality of constitution is such that in every possible world an authoritative directive will never be essentially legally valid—as it may conflict with superior directives—but only contingently so. As a result it will never be the case that an authoritative directive is essentially such that it constitutes a particular legal norm.122
With regard to the second question one could begin by noting that conceptual truths cannot be made true. Any invocation of truthmakers points to an explanatory relation in virtue of which a proposition is true.
However, there is a duality in the use of phrases such as ‘being true in virtue of’ depicting the two sides of the analytic/synthetic divide. Analytic or
122 A less robust refutation of the possibility of taking legal truths to be essential truths can be also attained by taking on board an alternative semantic value for legality. Thus on the assumption that legality denotes relations of legal obligation, right or power, the truth conditional content of the same utterance will deliver the proposition that in the Hellenic Republic pet owners are legally obligated to register their pets in the electronic inventory of their municipal residence. Again it clearly seems to be a contingent matter whether pet owners in Greece stand in a particular relation of legal obligation. There is nothing about the essential profile of pet owners that necessitates this relation.
182 conceptual truths are true as a matter of a relation of conceptual dependence obtaining between their constitutive concepts. In such cases, as
David Liggins explains, ‘what depends on what would be mirrored in the complexity of the concepts we use to think about these things;’123 In light of the present suggestion then, pure analyticities are not literally made true by their constitutive concepts; hence it is inaccurate to speak about conceptual facts qua truthmakers.124 Locutions such as ‘being true in virtue of meaning’ can be legitimate as long as they are positioned within the context of sentential meaning, to the exclusion of any ontological posits whatsoever.
Provided that pure analyticities are not literally speaking suitable candidates for truthmaking explanations it becomes questionable whether we may intelligibly subsume theories of law that rely heavily on conceptual analysis under the label of legal propositionalism. For instance, Joseph
Raz’s view on de facto authority and its relation to the claim to legitimate authority as well as his conception of the Sources Thesis as a claim about the identification of legal content are clearly endowed with conceptual arguments. Likewise, Scott Shapiro’s understanding of the determination of legal content is premised on the conceptual argument that ‘given that the law aims to solve moral problems through social planning, it cannot do what
123 See his ‘Truthmakers and Dependence’ in Fabrice Correia and Benjamin Schnieder (eds.), Grounding and Explanation, Cambridge: Cambridge University Press, 2011, pp. 254- 71, at 262. 124 At least since Wittgenstein’s elaborate argumentation in his Tractatus, it has become almost uncontroversial that for pure analytical truths there is no condition that the world must satisfy for their becoming true.
183 it is supposed to do when the logic of planning is violated.’125 My grasp is that assigning a pivotal role to conceptual arguments is not enough to render unintelligible the relevance of genuine trruthmaking explanations in law. The reason is that to the best of my knowledge most if not all conceptual arguments employed by analytic legal philosophers do not take the form of fundamental analyticities, or even less logical truths.
To see how we can accommodate some conceptual fluctuations within the standard confines of truthmaking I will briefly examine the impact of Raz’s
“strong conceptual moment” as it unfolds in his conceptual account of legal authority. His pivotal conceptual claim is captured by the proposition that law necessarily claims to possess authority. As it stands it is not directly evident how it is implicated in the question of what makes legal propositions true. Its impact, however, can become more manifest through its conceptual entailments. The latter claim entails the conceptual claim that law must be capable of possessing authority which further entails that ‘[first], a directive can be authoritatively binding only if it is, or at least presented as, someone’s view of how its subjects ought to behave. Second, it must be possible to identify the directive as being issued by the alleged authority without relying on reasons or considerations on which the directive purports to adjudicate’.126 Letting aside the familiar objections to this conceptual chain, I will focus on the question of whether these conceptual
125 S. Shapiro, Legality, Cambridge MA: Harvard University Press, 2011, p.348.
126 Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Revised Edition), Oxford: Oxford University Press, 1994, p. 215.
184 remarks about the properties of authoritative directives can deprive legal facts of their metaphysically robust status as truthmakers of legal propositions.
Bearing in mind that one of the targets of this exposition is to restrict the logical looseness in our assertions of legal content, I suggest we test the impact of Raz’s conceptual argument by provisionally relying on the truth- conditional analysis of legal statements I have outlined in section I.5.1.C.
So, let’s assume, for the sake of this argument, that the proposition that an authoritative directive X constitutes a legal norm Y is a truth- conditional statement that can accommodate Raz’s understanding of the structure of legal propositions.127 Taking this assumption on board the question that emerges is whether this proposition is amenable to truthmaking, that is to say, whether this proposition is literally made true by a legal fact about the existence of a legal norm. The part of Raz’s argument that makes this question prima facie relevant is the purported conceptual truth that for it to be the case that X is an authoritative directive
X must exist independently of the reasons that make this directive morally intelligible.
What could possibly make our talk of grounding the truth of legal propositions spurious? Suppose that the fact that the proposition that an authoritative directive X constitutes a legal norm Y is true is grounded in
127 As I have briefly argued in section I.5.2.A. Raz is a non-reductive realist about the obtaining of legal norms, hence he would most probably object to an eliminative understanding of legal norms in terms of authoritative directives.
185 the fact that Y exists. This is our default position as it seems unobjectionable that if Y exists, X exists. The further step is to see whether the obtaining of this fact can be fully accounted in terms of more basic conceptual facts. On Raz’s view it is a conceptual truth that an authoritative directive X is not existentially dependent on the reasons that make this directive morally intelligible. Consequently, Raz takes this conceptual truth to entail the further conceptual truth that an authoritative directive X is existentially dependent on facts about the actual sayings and doings of legal officials (Social Fact Thesis). By his theory’s own lights the latter facts are taken to be the grounds of legal facts, namely, facts about the existence of legal norms. As a result we get the following chain of propositions:
(1) The truth [an authoritative directive X constitutes a legal norm
Y] is grounded in the fact that legal norm Y exists.
(2) The authoritative directive X is not existentially dependent on
the reasons that make it morally intelligible [conceptual fact]
(3) (2) entails that the authoritative directive X is existentially
dependent on social facts about the sayings and doings of legal
officials [conceptual fact]
(4) Legal norm Y is existentially dependent on authoritative
directive X
(5) (3) and (4) entail that legal norm Y is existentially dependent on
social facts about the sayings and doings of legal officials.
186 (6) (1) and (5) entail that the truth [an authoritative directive X
constitutes a legal norm Y] ultimately depends on social facts about
the sayings and doings of legal officials. [conceptual fact]
Keeping the analysis in focus I will forgo the question of whether (2) conceptually entails (3)—which is what Raz argues for—and ask whether the conclusion (6), namely, the conceptual fact that the truth of [an authoritative directive X constitutes a legal norm Y] ultimately depends on social facts about the sayings and doings of legal officials, makes the claim that the fact that legal norm Y exists is the immediate ground of the truth that X constitutes Y metaphysically spurious.
That is to say, the question is whether the conceptual truth at which the previous syllogism arrives makes it the case that facts about the existence of legal norms cannot serve as genuine, extra-propositional truthmakers for claims of legal constitution precisely because the truth of the latter depends on social facts as a matter of conceptual necessity.
My response will be negative because as the syllogism stands it is falsely committed to the transitivity of the relation of truthmaking. More specifically, the problem arises as soon as we take on board the idea that truthmaking can be fully captured in terms of the relation of grounding which as it is commonly perceived is a transitive relation. Recall that the problem we are dealing with here is whether the presence of strong conceptual premises in the previous syllogism is capable of vitiating the
187 prospect of legal truthmakers. This fear of “contamination”, so to speak, is grounded in the truthmaker project’s core idea that truth must somehow be responsive to extralinguistic, worldly facts. If conceptual facts are implicated in the chain of arguments that explain the grounds of legal truth, it will be more figurative than literal to assert that legal truths really depend on facts about the world, rather than facts about our conceptual understanding. This alarming conclusion becomes plausible as soon as we take on board the idea that the relation between the truth of a proposition and its grounds (as it figures in (1)) and the relation between the grounds of a truth and their own grounds (as it figures in (5)) are of exactly the same nature such that if the latter relation is transitive so is the former.
As a rejoinder to this assimilative correlation between truthmaking and grounding I will repeat what is being frequently invoked in the relevant literature128 in support of their disassociation, namely, the fact that whereas the relata of truthmaking involve entities of a different kind (a linguistic representation of the world or proposition and a fact), the relata of grounding are both of the same kind, namely, facts. As a result the transition from a proposition-to-fact relation to a fact-to-fact relation is not mediated by some restrictive principles including the one that the relation
128 For a contrastive analysis see Gonzalo Rodriguez-Pereyra, Gonzalo, ‘Why Truthmakers?’ in Helen Beebee and Julian Dodd (eds.),Truthmakers: The Contemporary Debate, Oxford: Clarendon Press, 2005, pp. 17-31 and Jonathan Schaffer, ‘On What Grounds What’ in David J. Chalmers, David Manley and Ryan Wasserman (eds.), Metametaphysics, Oxford: Oxford University Press, 2009, pp. 347-83.
188 of truthmaking is not transitive. To see why this is not the case, let’s suppose that truthmaking is indeed a variety of the grounding relation.
Then, from the previous syllogism we get:
(1) [social fact] grounds [legal norm Y exists]
(2) [legal norms exists] grounds [ norm Y > is true] (3) [social fact] grounds [ true] The syllogism fails because there is a crucial shift from [ The combination of all the above results in a hybrid truthmaking explanation of legal propositions: conceptual facts may be implicated in the grounding of the truth of assertions of legal content but they are not explanatorily direct in the sense that legal propositions cannot be true simply in virtue of the obtaining of these conceptual facts. This is not the place to fully evaluate the intricacies of Raz’s reconceptualization of authoritative directives as preemptive directives but it suffices to say that insofar as explanations of propositional truths are not entirely grounded in tautologies or analytical entailments, it is permissible to categorize them as instances of truthmaking explanations. Barry Smith illustrates this point 189 particularly with regard to the grounding of what he calls impure logical truths by remarking that there is a class of logical truths ‘which do bear specific existential presuppositions, such as ‘John is hungry or it is not the case that John is hungry…These truths are made true (in the strict sense of [Truthmaking]) by the existence of the entities named’.129 Returning to the other side of the divide, synthetic uses of the notion of truthmakers point to the existence of an explanatory relation of ontological dependence which is actually more of a family of non-causal relations between entities. Being unable to adjudicate the fervent debate on how to demarcate the truthmaking relation vis-à-vis other types of relations of ontological dependence—for instance, the relations of constitution, determination and realization—I will take on board Jonathan Schaffer’s modest account of how propositions enter into relations of ontological dependence to their truthmakers.130 Schaffer regards truthmaking as an instance of the broader ontological relation of grounding whilst avoiding the pitfalls of modalized approaches to truthmaking explanations.131 In an 129 See B. Smith, ‘Truthmaker Explanations’ in J.-M. Monnoyer (ed.), Proceedings of the conference: Truthmakers: Twenty Years After, Aix-en-Provence, December 2004) 130 On Schaffer’s account, ‘truthmaking is the claim that the truth of propositions is not a fundamental feature of reality, and as such requires grounding [emphasis added] in what is fundamental’ (see Jonathan Schaffer, ‘Truthmaker Commitments’ in Philosophical Studies (2008) 141 (1): 7-19, at 10. 131 In the contemporary literature the modal understanding of truthmakers is usually dubbed ‘truthmaker necessitarianism’ according to which the existence of a truthmaker necessitates the truth of the proposition it makes true; for an overview of the debate see Ross P. Cameron, ‘Truthmakers and Modality’ in Synthese (2008) 164 (2): 261-80. 190 informal language, the understanding of truthmaking in terms of grounding is formulated by the following proposition: For entities a,b,c… to make P true is for the truth of P to be grounded in the existence of a, b,c… But what kind of ontological dependence is grounding? A particular trait of this relation is that it is widely taken to hold only between propositions, facts or states of affairs, thus it is particularly suited for legal content provided that we accept the premise that the bearers of legal content are propositions and, say, not mental states expressing approval or acceptance. Moreover, grounding like any relation of ontological dependence is irreflexive, that is, nothing is allowed to be grounded in itself, and asymmetric, that is, if x makes y true, then it is not the case that y makes x true. Another feature of grounding relations is their hyperintensionality such that the mere fact that every world where there is H20 is a world where 2 + 2=4 is true does entail that the latter truth is grounded in the existence of H20. Put differently, hyperintensional relations are such that they hold asymmetrically between their relata both of which necessitate each other. CHAPTER III A Semantic Digression 191 My previous points have been expository in function. No argument has been provided so far as to what taxonomical difference lumping together so disparate accounts of the nature of law under the label of legal propositionalism makes and, second, why such a thin pattern of thinking about the nature of law is capable of committing us to a preconception about the metaphysics of law that is robust enough so as to cause trouble if it proves incorrect. I shall begin making amends by attributing to the legal propositionalist a more committed viewpoint on the categorial profile of their ontological commitments. Admittedly, this also presupposes a commitment on my part as to how I prefer to understand the ramifications of legal propositionalism. The main idea is that talk about what makes propositions of law in a given legal system true is ontologically loaded. The ontological weight of propositionalist claims is allocated into two theses: (a) that there can be such a thing as true legal propositions which entails that there exist legal facts or facts to which legal facts are eliminatively reducible that make legal propositions true, and that (b) these truthmaking facts are grounded in metaphysically more fundamental social and/or normative facts. That being said, it remains unclear what exactly the object of a legal propositionalist’s ontological commitment is. The main reason is that the relevant literature on the truth of legal propositions has been rather permissive in its use of alternative terms to refer to the ontological counterpart of ordinary 192 assertions of legal content. As a result, there seems to be no rigid association of legality with a particular categorial profile. Our vocabulary constantly oscillates between property talk (legal or illegal actions), relational talk (legal obligation), sortal entity talk (the LAW requires) and objectual talk (legal norms). Whereas conceptions of ontological parsimony can be more or less conservative depending on one’s approach to what determines ontological commitment, my guess is that the value of semantic parsimony will be less controversial at least in the circle of semantic cognitivists. Unless there is a well-documented danger of sacrificing informative distinctions in the name of semantic regimentation it seems that no one would reject the instrumental necessity of regimenting different syntactic manifestations of the same semantic phenomenon into a logical structure that is capable of determining a more or less uniform truth value for our linguistic expressions. Moreover, this regimentation is imperative for the Quinean theorist for the additional reason that the quantified variables figuring in this regimentation will determine the scope of her ontological commitment. Granted, then, that the legal propositionalist is per definitionem a Quinean about ontological commitment a semantic digression into the truth conditions of legal propositions becomes a necessary step in the process of deriving the truthmakers of these propositions. As prefaced in the first section (I.5.1.C.), I will explore four theoretical options with regard to the semantic value of legality as it is manifested by 193 various syntactic forms (adverbial, adjectival and nominal). The idea is that its syntactic versatility can give way to a more refined logical regimentation that can capture the nature of the semantic information we purport to convey by means of ordinary assertions of legal content. I will structure this semantic digression in an incremental fashion beginning from the option that seems less plausible and ending up with the option that carries what I believe to be the best outcome in terms of jurisprudential neutrality and truth-conditional simplicity. By jurisprudential neutrality I intend to flag the importance of distinguishing between the semantics and metaphysics of legal talk.132 To paraphrase Alex Silk’s similar remark on the semantics of moral terms, ‘the sorts of truth conditions that reflect what it takes to know what a [legal] sentence means are conditions on how things might be [legally]. By contrast, what conditions must obtain in the world for a [legal] sentence to be true is a substantive issue.’133 On the other hand, simplicity in the truth-conditional analysis of a sentence is a function of how minimal 132 To put it differently, this distinction points to the view that propositions are not semantically transparent to their truthmakers. The latter does not presuppose anything with regard to the question of whether, for instance, every legal proposition has a distinct truthmaker or whether its truthmaker is a fact about the very same propositional content asserted by a legal utterance; it only commits us to the idea that every legal proposition has some truthmaker or other. For instance, there can be predications such as ‘the electron is spin up’ whose truthmakers depict their fundamentality. In such a case a plausible truthmaker would be the very fact that the electron is spin up. This overlapping of propositional content and truthmakers is not necessary but can be a function of the fundamentality of the truth asserted. 133 Alex Silk, ‘Truth Conditions and the Meanings of Ethical Terms’ in Russ Shafer-Landau (ed.), Oxford Studies in Metaethics, Vol.ume 8, Oxford: Oxford University Press, 2013, pp. 195-222, at 201. 194 the terms of semantic competence are with regard to its use. In the present case, the relevant standard of simplicity can be specified by reference to the degree of context-dependence of legal utterances. In the light of my previous remarks about the possible two-dimensionality and the de se character of legal assertions I will try to frame truth conditions at a higher level of abstraction leaving space for further semantic refinement. III.1. The Property Approach A first theoretical option is to consider the possibility of understanding legal assertions as attributions of a property or a property-like entity. On the property approach legality (and illegality) is a monadic predicate that has as its ontological counterpart the property of being legal or illegal. As evidenced by its ordinary syntactic use, the bearers of the property of being legal or illegal are act (or omission)-types. For instance, a familiar reparsing of more formulaic legal statements of the form ‘it is legally obligatory to φ’ includes locutions like ‘not φ-ing is illegal’ or ‘φ-ing is the legal thing to do’. Similarly, expressions like ‘it is legally permissible to φ’ can be recast in predicative language as ‘φ-ing is legal’. Beyond surface grammar, however, things get murkier as it is not directly evident whether the property of being legal or illegal is a normative or descriptive property or whether, in case it is normative, it gravitates towards the thin or the thick edge of the spectrum. 195 In what follows I will briefly present two alternative routes for modelling legality as a property-like entity or real property. The first route leads to something less than a full-fledged property interpretation of legality but it manages to capture the normative flavor of the term. On this approach, sentential uses of being legal or illegal are attributive in nature in the sense that legal or illegal functions as an incomplete predicate modifier, rather than as a predicate in its own right. As a result, there will be no such thing as being legal or illegal simpliciter but only being legal or illegal thus and so. The second route is more loyal to the property approach’s ambition as it allows legality to figure as a full-fledged property at the cost, nevertheless, of bereaving legality of its normative flavor. On this alternative approach, being legal or illegal will be an objectionable thick property such that the normative judgment conveyed by the use of these terms is not part of their semantic content but a pragmatic implication of the relevant utterance. As a result, the semantic value of the predicate being legal will be determined by the descriptive component of the concept which in its most abstract parsing will deliver a description of the form ‘satisfies the criteria of legal validity set out by officials at system S’. My critical appraisal of both readings will be based on how well they can accommodate jurisprudential neutrality which in what follows I will quote as NEUTRALITY. It is at least plausible to assume that a basic desideratum for any theory in normative semantics is that it remains neutral with regard to the substantive criteria that determine the extension of a normative term. 196 Consequently, the bar of semantic competence raised by any theory in this domain should not be elevated beyond the point of what is true at a world under an ordering. Packing the metaphysically proper ordering into the truth conditions of normative terms would amount to assigning semantics with the task of solving or presupposing solutions for philosophical problems about how we should live. In the light of this caveat it will turn out that both suggested readings for legality end up unduly exonerating either the legal positivist or the legal antipositivist from her concern about how to fend off substantive criticism. This is precisely the implication of injecting into our semantics substantive or metaphysical views. A. Legality as an Attributive Term This interpretive option draws upon some parallel remarks about the semantics of thin deontic and evaluative terms like rightness or goodness respectively. An appealing thought is that an illuminating way to begin exploring how legality can function as a predicate of some sort is to examine which type of treatment is reserved for terms that seem to display similar syntactic traits. In this respect rightness rather than goodness appears to serve as a more appropriate sample for cross-examination. What mainly tilts in favor of legality’s greater affinity with rightness is their syntactic behavior. More specifically, ‘right’ and ‘legal’ are equally capable of occurring as adjectives in impersonal deontic constructions in which they 197 take infinitival clause arguments featuring actions or omissions as their semantic values. Consider examples like ‘it is right to help Mary with her homework’ and ‘it is legal to drink in Canada from the age of 18’; in the former example the adjective ‘right’ has the meaning of being obligatory or required whereas in the latter example ‘legal’ has the same meaning as the compound expression ‘it is legally permissible’. Less frequently, rightness and legality take the form of noun phrases that operate as substitutes for deontic modals: when we say, for example, that helping one’s neighbor is the right thing to do or that paying a capital gains tax is the legal thing to do. That being said, it is far less obvious whether legality is as thin as rightness. Beginning from the one edge of the spectrum, to say that a property is thin is to say that no information is available as a matter of conceptual entailment with regard to what makes it the case than an act is right.134 What makes something the right thing to do is just not the kind of thing that rightness is conceptually transparent to.135 By contrast, what 134 The way I am presenting this contrast is not entirely precise. Some philosophers, most prominently Judith Jarvis Thomson, believe that there is no such thing as thin value. Therefore they resist the thought that goodness is even a formal, higher-order property either of reason-giving facts or of thick evaluative properties. So a less controversial contrast would be between the thinness of deontic properties and the thickness of value. 135 A first point of caution is that the illustrative contrast between thin and thick normative terms does not entail that thin deontic properties are unexplainable or irreducible. Much to the contrary there is a burgeoning literature on plausible reductions of properties such as the property of being wrong or obligatory to other normative properties or relations. Hence, it is one thing to say that rightness is reducible to the property of being all-things- considered reason-giving or that rightness is an intrinsic property of some act-types, like 198 marks a property as thick is that it has both a normative and non-normative component such that being semantically competent with the use of a thick term presupposes some familiarity with some description encoded in the term’s extension which allows us to infer when its normative component is applicable. More specifically, it is claimed that thick properties seem to carry with them certain non-evaluative claims as a matter of conceptual necessity.136 As previously noted, one route involves treating legality as a semantic vehicle for rendering a normative judgment of some sort. Whereas on some reductive views rightness of an act-type φ can be analyzed into the dyadic relation of there being an-all-things-considered reason to φ, the same cannot apply to legality on pain of making rightness and legality semantically indistinguishable. That being said, it would still be possible to afford an attributive reading of legality such that to say that ‘φ-ing is legal’ is to say that ‘φ-ing is favored by a reason for action qua being an instance of LAW’’. On this approach, being legal is not a full predicate but an elliptic use for a longer description of the form ‘being favored by a reason for action qua being an instance of LAW ’. LAW will stand here for a promise-keeping, and another thing to say that to be semantically competent with regard to attributions of rightness one must be capable of enumerating the types of action that are intrinsically endowed with prima facie rightness. The first class of claims is metaphysical, whereas the second is semantic. 136 It is a further issue whether these two components can be successfully disentangled so that a thick property can be analysed as a normative relation between a distinct descriptive component and a thin normative property. For a further analysis see Part II, Ch. II.2. (“Thick Evaluation, Global Judgement and Constitutive Impact”). 199 determinable137 reasons-fixing kind such that part of what it is to be an instance of LAW is to have the property of being supported by reasons. This will amount to treating legality as an attributive predicate modifier138 such that the following entailment cannot hold: φ-ing is favored by a reason for action and φ-ing is an instance of the LAW of S entail the proposition that φ- ing is an instance of the LAW of S favored by a particular reason for action. If legality is attributive then we cannot say of an act of φ-ing that it has the property of being supported by a reason for action and the property of being an instance of LAW. In the light of these remarks I believe that it becomes immediately obvious why attempting to construe legality as a modifier of an implicit normative predicate violates NEUTRALITY. For the sake of vindicating at the level of semantics the normative flavor of legality’s syntactic behavior it introduces a semantic bias in favor of legal antipositivism. It does so by semantically modelling the capacity to provide reasons for action as an essential or kind-determining property of law. This may be true or false from a substantive point of view but it is highly unlikely that this issue can already be settled at the level of semantics. Arguing for the opposite view would forestall any further theoretical engagement regarding the grounds 137 Determinable in the sense of standing in a relation of determination to more specific kinds like the LAW of the United Kingdom. 138 The distinction between predicative and attributive properties is originally found in P. Geach, ‘Good and Evil’ in Analysis (1956) 17: 33-42, followed by Judith Jarvis Thomson’s ‘The Right and the Good’ in Journal of Philosophy (1997) 94(6): 273-298. 200 of legal facts. If legal propositions are propositions about the instantiation of a normative kind-determining property, there is no room for arguing that their truthmakers (legal facts or whatever the latter are reducible to or a tertium quid) are exclusively descriptive in content. B. Legality as an Objectionable Thick Property An alternative approach seeks to do justice to the claim that legality’s apparent thickness is not a function of its being associated with a robust normative kind but of its subjecting to some kind of evaluation descriptive information regarding the satisfaction of criteria of legal validity. This claim does not by itself entail a commitment to a version of exclusive legal positivism. All that it says is that among other things legality is also about “ticking some boxes” established by the practice of legal officials. Even the staunchest natural law theorist would not reach the point of denying that legal validity is also a matter of satisfying some descriptive criteria. David Enoch and Kevin Toh provide a preliminary account of the content of legality understood as a thick property. Whereas they remain reluctant to commit themselves to a definitive account of the normative component of legality, they take a more committed stance with regard to the descriptive component of legality by noting that it ‘can [then] be understood in terms of representations of some social facts -- i.e. the social facts in virtue of which some act or practice type counts as legal or illegal. These facts would differ 201 from one jurisdiction to the next, but they may be uniform across jurisdictions on sufficiently high levels of abstraction’.139 At the same time, the approach under review carries the burden of validating the intuition that at some level of communication attributions of legality encode normative judgments. In what follows I shall argue that, if we want to fully embrace the property approach, the most promising treatment of the normative flavor of attributions of legality is pragmatic rather than semantic.140 If legality is a thick term that can accommodate some degree of jurisprudential disagreement, the normative judgments about the existence of reasons for action that terms like ‘legal’ and ‘illegal’ may be used to convey is not part of the terms’ semantic content but they are presuppositionally implied. In the present context I will refer to presupposition as a pragmatic mode of conveying the information whereby a speaker takes for granted a certain informational content which she expects to hold in the common ground of a discussion.141 Eventually, I will 139 David Enoch and Kevin Toh, ‘Legal as a Thick Concept’ in Wil Waluchow and Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law, Oxford: Oxford University Press, 2013, p. 257-278, 264. 140 Momentarily, Enoch and Toh consider the possibility of building the evaluation conveyed by the use of ‘legal’ into its semantic content. 141 By this caveat I purport to distinguish pragmatic from semantic accounts of presupposition. The former account is commonly associated with Robert Stalnaker’s theory of pragmatic presupposition according to which the proper object of linguistic scrutiny is not what words or sentences presuppose, but what people presuppose when they are speaking. In this pragmatic sense presupposition is a propositional attitude of the speaker. In Stalnaker’s words, ‘[to] presuppose something is to take it for granted, or at least to act as if one takes it for granted, as background information—as common ground among the 202 conclude that although it can accommodate a fair amount of jurisprudential dissent, the pragmatic account fails to meet the challenge of NEUTRALITY because it makes this semantic apparatus unavailable as a maximally inclusive platform of meaningful disagreement about legal content. A plausible way to make this theoretical option work is to explore whether legality behaves semantically as an objectionable thick concept. This semantic phenomenon comes in degrees when, to use Pekka Väyrynen’s description, ‘a thick term or concept (as used in certain way) embodies values that really ought not to be endorsed [,or when] someone regards a thick term or concept (as used in a certain way) as objectionable if it embodies values she thinks ought not to be endorsed’142 The idea of there being objectionable thick concepts is developed against the common assumption that people use terms like lewd or chaste in the first place not just because they think that the behavior they witness is overtly sexual or abstentive vis-à-vis extramarital or any kind of sexual intercourse but because they attach some value or disvalue to its being thus and so. At the same time, there may be interlocutors whose reaction to the use of such participants in the conversation. What is most distinctive about this propositional attitude is that it is a social or public attitude: one presupposes that φ only if one presupposes that others presuppose it as well’ (Robert Stalnaker, ‘Common Ground’ in Linguistics and Philosophy (2002) 25: 701–721, p. 701). 142 Pekka Väyrynen, ‘Thick Concepts: Where’s Evaluation?’ In R. Shafer-Landau (ed.), Oxford Studies in Metaethics, Volume 7, Oxford: Oxford University Press, 2012, pp. 235-70, at 242. 203 terms will be something like ‘this is not of my words’ precisely because they find the evaluative determination of their extension morally objectionable. A promising way to make sense of this phenomenon is to detach the evaluations on which the erupting disagreement is focused from the literal semantic content of the term and relegate them to the conversational background. If this translocation is possible, it will also be possible to argue that the evaluative aspect of the discourse is not part of what is semantically at issue among the speakers when the “provoking” utterance is made. This will ensure that speakers are not talking past each other when they engage in normative disagreement about a given concept. A fairly common way to test whether an informational component of a term does not figure in its truth conditions is to consider whether the said piece of information is preserved as an utterance implication ‘when the expression that triggers the implication occurs under the syntactic scope of an entailment-canceling operator’.143 If preservation is attained, we can say that the relevant implication projects. As Väyrynen explains, the entailment- canceling operators to which PROJECTION refers include questions, negation, possibility modals and epistemic modals and antecedents of conditionals.144 For the sake of simplicity I will confine my examples to 143 M. Simons, J. Tonhauser, D. Beaver, and C. Roberts, ‘What Projects and Why’ in N. Li and D. Lutz (eds.) Proceedings of SALT (Semantics and Linguistic Theory) 20, Ithaca, NY: CLC Publications, 2010, pp. 309-27, at 309. 144 Properly speaking, a fully reliable application of PROJECTION requires a context that does not deflate utterance implications. 204 instances of negation with a view to exploring whether the negation operator serves a truth-conditional or metalinguistic purpose. Applying this test to the legal case145, we can imagine a conversation between two devout legal antipositivists, call them Thomas and Lon. For them the extension of the property of being legal is determined by recourse to comprehensive evaluative judgment about which the reason-giving descriptive criteria of validity actually are. To draw an analogy with the property of being distributively just, a pair of interlocutors who agree that its extension is driven by evaluation can nevertheless disagree about which features of a given distribution are in fact good-making. For instance, it is an open question whether the good-making features of a distribution are only its intrinsic properties or, perhaps, also extrinsic ones. To take the case of a just distribution of opportunities we may ask whether it is sufficient to judge its goodness by appeal to its intrinsic formal equality, that is to say, its elimination of any formal discrimination on grounds such as a person’s race, ethnicity, age, gender or sexual orientation, or whether we should also take into consideration the distribution’s extrinsic, causal properties, for instance, its capacity to bring about the best outcomes in terms of long-term benefits for the largest number of people. 145 So far the literature offers a single clear case wherein a preliminary association of legality with the thick spectrum of normative properties legality is made. David Enoch and Kevin Toh provide a broad sketch of the leeways for modelling legality as a thick property. Their remarks, however, remain inconclusive as they stay clear of any committing argument that could make their analysis exposable to scrutiny. 205 Now suppose Thomas utters (1) and Lon utters (2): (1) Not Φ-ing is illegal146 (2) Not Φ-ing is not illegal In our constructed context, the speaker of (2) seems to be denying that an instance of Φ-ing satisfies the descriptive profile necessary for its counting as being supported by decisive reasons. Lon’s negation of (1) is truth- conditional or descriptive in the sense that it targets the content of Thomas' utterance rather than the utterance itself. Consequently, the disagreement between Thomas and Lon takes place against a common jurisprudential background since they are both antipositivists. Now, suppose that this discussion is overheard by a staunch proponent of legal positivism, call him Joseph. We would naturally expect that Joseph would regard the disagreement about the extension of legal as it is framed as a non-starter. What Joseph particularly takes issue with is not whether this particular act description satisfies this or that descriptive profile but the truth of the normative judgment implied by utterances like (1), namely, that satisfying some descriptive criteria is essentially marked by some positive evaluation. As a result, uttering (2) in truth-conditional terms would 146 A more fine-grained formulation of the same statement would be something like ‘Φ-ing is legally required’. The reason I am avoiding the use of the predicate ‘being legally required’ is that in this case ‘legally’ operates as a modifier of the predicate ‘being required’ rather than as a genuine predicate. As a result this syntactic occurrence of legality is somehow distracting as it deflects our attention to the alternative reading of legality as a normative kind term (as in ‘the LAW requires that one Φs’) for which I will undertake a thorough examination in the following section. 206 not be an option for Joseph in order to voice his disagreement. The crucial question is whether there is a felicitous way for Joseph to channel his disagreement specifically towards the normative component of legality. A promising way to preserve the genuineness of the emerging disagreement is to entertain the hypothesis that the evaluation at hand is not part of the literal semantic content of LEGAL but part of its non-truth-conditional or presupposition content. On this construal, Joseph’s objection could be modelled as an instance of metalinguistic negation. To see how this works, suppose that Joseph utters the following sentence: (3) Not Φ-ing is not ILLEGAL; that it signals satisfaction of some descriptive criteria of legal validity doesn’t mean that it is a reason to Φ.147 A plausible way to understand Joseph’s objection is to interpret his negation in metalinguistic terms. Borrowing Väyrynen’s definition, 147 Equally felicitous negations of (1) could be represented by the following alternative responses given the appropriate pitch-marking: Not Φ-ing is not ILLEGAL, but/although it does signal the satisfaction of descriptive criteria of validity Not Φ-ing is not ILLEGAL because it is in no way reason-giving for signaling the satisfaction of descriptive criteria of validity The above utterances purport to affirm the non-normative entailment of (1) but deny the normative content associated with it by our exemplary legal antipositivists. Concessive denials of the normative content of ‘legal’ are also available: Whether or not not Φ-ing is illegal, it is in no way a reason to Φ Whether or not not Φ-ing satisfies some descriptive criteria of legal validity this would be in no way a reason to Φ 207 metalinguistic negation (as opposed to truth-conditional negation) is ‘a device for objecting to a previous utterance on the basis of its presuppositions, implicates, or linguistic form or manner, rather than its content’.148 It looks very plausible that the second half of (3) channels the negation expressed in the first half specifically to the normative content pragmatically associated with (IL)LEGAL by our exemplary legal antipositivists. A metalinguistic denial of (1) would involve an utterance identical to (2) but this time it would be interpreted as denying a previous utterance on the basis of its presuppositions rather than its content. To paraphrase Väyrynen’s application of the same notion, ‘the material under the scope of the negation in the first half seems to be naturally heard as echoing149 an actual or potential positive utterance by another speaker, followed in the second half by a rectifying clause that expresses a comment on some aspect of that utterance.’150 In the relevant case the aspect that serves as the ground for metalinguistic denial is the presupposed normative judgment that legal validity essentially involves reason-giving. 148 Pekka Väyrynen, ‘Thick Concepts: Where’s Evaluation?’, supra note 11 at 254. 149 As Robyn Carston explains, ‘[a] representation is used echoically when it reports what someone else has said or thought and expresses an attitude to it’ (see his Metalinguistic Negation and Echoic Use’ in Journal of Pragmatics (1996) 25: 309-30, p. 332). In the present context, Joseph echoes Thomas’ utterance with a similar content to the one expressed in his utterance, in order to express a critical attitude to it in the accompanying rectifying clause. The term ‘echoic mention’ was has been coined by Dan Sperber and Deirdre Wilson; see their ‘Irony and the Use-Mention Distinction’ in P. Cole (ed.), Radical Pragmatics. New York: Academic Press, 1981, p. 295-318. 150 Pekka Väyrynen, ‘Thick Concepts: Where’s Evaluation?, supra note 11 at 253. 208 As a result Joseph’s use of ILLEGAL in (3) will be echoing its use in (1) such that (3) and (1) do not express logically inconsistent propositions. The material falling in the scope of “not” in Joseph’s utterance ‘not Φ-ing is NOT ILLEGAL’ is echoically mentioned or meta-represented rather than used.151 Joseph’s denial of the presupposition expressed by (1) is nevertheless felicitous precisely because on the metalinguistic model the denied presupposition is defeasible. Joseph’s rectifying clause that it signals satisfaction of some descriptive criteria of validity doesn’t mean that it is a reason to Φ preserves the felicity of his response insofar as we subscribe to the view that the evaluation he objects to is not part of the semantic content of LEGAL but merely a conversationally defeasible presupposition. Thomas, Lon and Joseph appear to agree on the literal semantic content of LEGAL— its descriptive aspect—such that the propositions or the truth-conditional content they express in this exemplary dialogue remain logically consistent. What allows this exchange to appear as an instance of a genuine substantive disagreement about value is the theoretical detachment of the evaluation from the semantic content of LEGAL. Whereas this semantic treatment of legality appears to be non-committal with regard to the value-sensitivity of assertions of legal content it does so at the expense of being overly restrictive of the site of theoretical 151 The possibility of construing utterances like Joseph’s as instances of metalinguistic negation further strengthens the case for treating the normative judgment denied as an implication of utterances involving LEGAL or ILLEGAL rather than as part of their semantic content. For this point cf. Pekka Väyrynen, ‘Thick Concepts: Where’s Evaluation?’, supra note 11, p. 254. 209 disagreement about the grounds of law. By relegating the dimension of evaluation from the domain of asserted content to the domain of presupposed content it preempts the ensuing disagreement about the grounds of law in a way that is less forthcoming than in the case of the attributive reading of legality. Participants in this dialogue are misrepresented as agreeing that literally speaking legality is a monadic predicate denoting a descriptive property but disagreeing with regard to its normative implications. Thus, Joseph appears to convey the idea that nothing of normative importance essentially follows from the fact that something is legal or illegal, whereas Thomas and Lon are, incorrectly, portrayed as claiming that there is something essentially valuable in the fact that something is legal. But this is not what a genuine legal antipositivist would want to say. For both Thomas and Lon the evaluation determines the extension of LEGAL and as such it cannot but figure into its semantic content. Modelling LEGAL as an objectionable thick predicate can represent an instance of theoretical disagreement as genuine only between a descriptive and a normative positivist but not between a positivist of whichever kind and an antipositivist. That being said, there is more than one kind of normative legal positivisms that this semantic modelling can accommodate; for instance, (1) could be metalinguistically negated by someone who believes 210 that legal positivism is an intrinsically good thing that ought to be promoted152, or, alternatively, by someone who advances the methodological claim that acknowledging that the determination of legal content is a matter of social fact is quite compatible ‘with a decision to focus one’s jurisprudential efforts on certain features of law that have, admittedly as a derivative matter, a moral dimension, and are therefore not purely social in character.’153 At any rate, the upshot remains the same, namely, that construing legality as a descriptive property with normative implications is only a partial invitation to theoretical disagreement about the grounds of law. It is partial precisely because it forces opponents of hardcore positivism to affirm its core premise which is the thesis that legal content is determined by social facts alone. III.2. The Sortal Approach In the previous section I tried to offer two alternative readings of legality construed as a predicate modifier and as a monadic predicate. In the more 152 In Jeremy Waldron’s instructive terms normative positivism boils down to the idea the ‘separability of law and morality, or this separability of legal judgment and moral judgment, is a good thing, perhaps even indispensable (from a moral, social, or political point of view), and certainly something to be valued and encouraged’ (J. Waldron, ‘Normative (or Ethical) Positivism’ Jules Coleman (ed.) Hart’s Postscript: Essays on the Postscript to The Concept of Law, Oxford: Oxford University Press,2001, pp. 410-33, at 411). 153 S. Perry, 'Beyond the Distinction Between Positivism and Non-Positivism’ in Ratio Juris (2009) 22(3): 311-25, 318. 211 robust of the two readings legality appeared to have the semantic value of a descriptive property of actions. In this section, I will explore another theoretical option that echoes two further syntactic manifestations of legality. My motivation for subjecting these manifestations to joint scrutiny is that in both cases legality assumes the syntactic role of an adverbial mofidier. Their semantic difference is not a result of the semantic role of legality but of their distinct compositional meanings. In the first case, the abverbial ‘legally’ operates as a modifier of relational predications of the form ‘A is [legally] obligated/permitted/empowered to φ’ whereas in the second case the same adverbial operates as a modifier of deontic modal statements of the form ‘A legally ought/must/may/should φ’. As I aspire to show, in both cases the semantic value of ‘legally’ is LAW qua a sortal entity. Consequently, the argument I shall deploy in favor of rejecting this reading will be the same for both syntactic instances of ‘legally’. The first case features predications of legal content cast in relational terms. This is perhaps the most common way of expressing legal propositions precisely because the kind of relational predicates employed are ideal for expressing the nuanced modality of legal language. Standard locutions include relational predicates of the form ‘[legally] obligated/required’, ‘[legally] prohibited’, ‘[legally] permitted/allowed’ and ‘[legally] empowered/capable of’. A preliminary question that arises specifically with respect to this type of syntactic manifestation of legality regards the type of relation indicated by the use of these relational 212 predicates. The logical regimentation of legal assertions as relational statements must, first and foremost, be compatible with an accurate understanding of how we choose to apply the concept of relatedness. A familiar debate in the metaphysics of relations is dedicated to unpacking the question of whether relational predicates invariably correspond to a combination of monadic properties or whether there exist genuine external, so to speak, relations that operate as the truthmakers of relational predications. The distinction against which I aim to test legal predications is pithily defined by Peter Simons and Fraser MacBride as follows: ‘[here] is how we will define ‘external’ and ‘internal’. Let barb be a true relational predication with a and b as terms, and assume it is possible that a and b both exist together (in one world, not necessarily at the same time). If it is possible that a and b both exist and it not be the case that aRb, then if aRb we say the relational predication is true externally. If it is not possible that a and b both exist and it not be the case that aRb, then where aRb we say the relational predication is true internally.’154 A point of caution is in order. The relevance of the distinction between external and internal relations pertains to the metaphysical question of what the proper truthmakers of relational predications are, not to the semantic question of what the truth conditions of relational predications are! For instance, take a sentence of the form ‘John is the son of Mary’. From a semantic point of view ‘John is the son of Mary’ is true iff John is the 154 Peter Simons and Fraser MacBride, ‘Relations and Truthmaking’ (part I, Peter Simons) in Proceedings of the Aristotelian Society Supplementary Volume (2010) 84: 199-213, 203. 213 son of Mary. The latter is a statement about the truth conditions of this sentence. At the same time if we were asked about what in the world accounts for the truth of this statement, a proper response would be something like ‘John is intrinsically possessed of genetic profile A and Mary is intrinsically possessed of genetic profile B’. The relation of parenthood does not feature a part of what makes the exemplary proposition true precisely because John’s and Mary’s essential properties suffice for that purpose. Their essential properties jointly necessitate that John is the son of Mary. Let us start from the hypothesis that relational predications of legal content are internally true. Internal relational predications have no ontological relational counterpart (a relational trope or universal) as their truth is entirely parasitic on the intrinsic properties of the entities they relate. Now the question that emerges is what kind of intrinsic properties the relata in a statement of the form ‘A is legally obligated to φ’ must be possessed of in order to make the proposition expressed by this sentence true. The absurdity is already apparent. For instance, positing that A is a citizen of state X that has legislated the obligation to φ is definitely insufficient as citizenship is not an intrinsic property on any plausible reading. Citizenship itself is a legal relation conferred by a sovereign state.155 What about, say, A’s property of being French by ethnic origin? 155 The same would apply if instead of the relational property of citizenship we focused on the property of having one’s residence within a given state’s jurisdiction or, more broadly, the relational property of being geographically located within a state’s jurisdiction. These are also contingent attributes awarded by the law and they are not in any possible sense of 214 This would be equally problematic for two reasons, one substantive and one juridical. First, from the viewpoint of evolutionary biology it is scientifically nonsense to argue that ethnicity is an intrinsic property of persons for the obvious reason that genetic populations are not structurally isomorphic to divisions pertaining to ethnic populations. The latter are just a socio- historical construct and nothing beyond that. On the other hand, the same suggestion is also highly unintuitive from a juridical perspective as someone’s ethnic origin is only contingently implicated in the attribution of legal obligations, rights or powers for the simple reason that legal jurisdiction is comprehensive in the sense that it purports to subject to its regulatory competence a variety of interpersonal relations as well as of personal statuses. On the most plausible hypothesis relational predications of legal content are externally true. In no way does the mere existence of agents or act- types necessitate their standing in a legal relation of some sort. For the latter purpose there must exist some sort of affirmative legislative activity within the context of a particular political community that is extrinsically sufficient for holding a class of agents bound to a set of legal duties, rights or powers. Painting with a broad brush we could say that [A is legally obligated to φ] is true iff the fact that the LAW of S requires of A to φ is an all-things-considered reason to φ. As I plan to explain towards the end of this section, there are positivist routes to mitigating the committing effect the term intrinsic features of a person. 215 of postulating normative truth conditions for legal statements featuring deontic concepts. By the same token the interaction of the adverbial ‘legally’ with deontic modals appears to deliver the same semantic value for LEGALLY. On a familiar reading of deontic modals, expressions like ‘ought’, ‘must’, ‘should’ or ‘may’ are analyzed as operators applying to propositional complements in the likeness of treating alethic modals like ‘necessarily’ and ‘possibly’ as propositional operators. Moreover, modifying abverbials like ‘morally, ‘rationally’, ‘legally’ etc. contribute to the truth conditions of deontic statements by way of restricting through some kind of evaluation the world- states at which the propositional contents of those statements are required, permitted or forbidden. For the sake of preserving consistency with my introductory remarks (see sec. I.5.1.A), I will assume that deontic operators are properties of structured propositions such that [A legally ought to φ] is true at world w iff the proposition that there is an all-things-considered reason for A to φ is true at all world-states from w where A possesses the property of φ-ing and 216 figure in the truth conditions of legal statements featuring deontic modals directly commits us to the truth of legal antipositivism. In the light of these two syntactic examples, it bears emphasizing that so far no conclusive argument has been offered suggesting that legality can indeed assume the semantic role of a source of normative requirements. What is still missing is some evidence to the effect that LAW can be a determinable sortal entity such that upon its determination with respect to a particular legal order it operates as a code or source of normative requirements. Before subjecting this hypothesis to further scrutiny, it is worth noting that on the present scheme arriving at the verdict that LAW is a determinable sortal entity does not preempt the dispute between legal positivists and antipositivists. By contrast with the thick property account it bears no commitment as to whether an instance of ‘requiring’ is robustly felicitous in the sense that it conditions the descriptive criteria of legal validity on their capacity to provide a valid reason for action. Taking a brief look at the literature on the so-called ‘legal point of view’ we can locate at least two different avenues to a positivist explanation of the use of normative language in law. Both approaches seem to associate the legal point of view with the normative point of view of the LAW thereby advocating a sortal entity reading of legality. What is of particular interest is their astuteness in bypassing the Humean challenge of deriving an ‘ought’ from an ‘is’ without falling prey to the antipositivist argument that they are simply missing the point. The first and more traditional view is 217 Joseph Raz’s analysis of deontic statements made from a legal point of view. Being motivated by the concern of how to preserve the normative flavor of legal statements without allowing value-based intuitions to vitiate his positivist enterprise, Raz favors a pragmatic account of normative statements of law. The second positivist approach is owed to Scott Shapiro’s perspectival account of legal statements. Shapiro’s approach is semantic rather than pragmatic arguing that despite appearances legal statements are descriptive in virtue of their being de dicto rather than de re deontic truths. Beginning with Raz’s account of the legal point of view it is worth quoting his explanation of why the semantics of legal statements are notoriously recalcitrant to assimilation by general accounts of normative statements. He remarks that ‘[the] beginning of wisdom is to allow that such statements are not reducible to one or the other of the basic types. Such statements simply state what one has reason to do from the legal point of view, namely, what ought to be done if legal norms are valid norms. But they do not state this conditional [emphasis added]…[t]hey are like statements made on the assumption [emphasis added] that something is the case. They do not state that if the law is valid that is what ought to be done. Nor do they state what ought to be done. They do not presuppose that the law is valid [emphasis added]’.156 On the one hand legal statements featuring deontic modals (ought, must, may) or concepts (obligatory, permissible) 156 J. Raz, Practical Reason and Norms, (with a new postscript), Oxford University Press, 1999, p 175. 218 according to Raz are not conditional descriptive statements merely reporting what is logically entailed if the normative viewpoint of the law holds. On the other hand, their standard use seems to be echoic in the sense that the ordinary speaker does not use this sentence truth-conditionally— that is, she does not purport to represent it as true—but attributes it to a particular legal practice thereby expressing an attitude of disassociation with regard to whether the fact that the LAW requires that φ is really a normative reason to φ. This is precisely the type of attitude referred to by Raz in his argument about the ‘detached point of view’. Raz comments that ‘[legal] scholars— and this includes ordinary practicing lawyers—can use normative language when describing the law and make legal statements without thereby endorsing the law’s moral authority. There is a special kind of legal statement which, though it is made by the use of ordinary normative terms, does not carry the same normative force of an ordinary legal statement’. 157 Jules Coleman makes exactly the same point when he argues about the ‘re- description’ of legal content qua moral content. He notes that a statement of the form ‘mail fraud is illegal’ should be analyzed in terms of the sentence ‘[from] the law’s point of view by acting in such a way as to make mail fraud illegal the law warrants re-describing mail fraud as morally wrong’.158 This is a pragmatic, not semantic, analysis of legal statements as it permits the echoic mention of moral content by way of taking a 157 J. Raz, The Authority of Law: Essays on Law and Morality (Revised Edition), Oxford: Oxford University Press, 2012 (original publication year 1979), p. 156. 219 disassociated stance towards the fact that the LAW qua source of requirements is also normative either ad hoc or essentially. At the same time, Raz is willing to make room for committed legal statements; he asks us to consider the case of a vegetarian who sincerely believes that it is wrong to consume meat. Whereas his carnivore interlocutor will use the sentence ‘you should not eat this dish because it contains meat’ in a detached or echoic or non-truth-conditional manner, the vegetarian will use the very same sentence truth-conditionally. I believe that Raz’s description of the latter type of statement as committed is not pragmatic but cognitivist. That is to say that the vegetarian does not express an attitude of disapproval towards the act of consuming meat but purports to make a truth-apt statement about what is wrong with eating meat. If this interpretation is correct, then it cannot remain an option for Raz to claim that committed statements of legal content are literally legal 158 Jules Coleman, ‘Beyond the Separability Thesis: Moral Semantics and the Methodology of Jurisprudence’ in Oxford Journal of Legal Studies (2007) 27 (4): 581-608, p. 597. Whereas Coleman describes his view as the ‘moral semantics thesis’ this should not misguide us to believe that his argument is literally semantic. A charitable way to read his argument is that he purports to accommodate the truth-conditional challenge of real moral claims within the peculiar context of legal discourse. He describes his thesis as ‘a claim about how the content of the law can be (accurately or truthfully) described. The moral semantics thesis is the view that the content of the law can be truthfully re-described as expressing a moral directive or authorization…The moral semantics claim is that ‘mail fraud is not to be done’ can be re-described truthfully as ‘mail fraud is morally wrong’ (ibid, p. 592). I take it that what he means by ‘warranted re-description’ is that the utterance ‘mail fraud is illegal’ implies (in the pragmatic sense) that a given legal practice purports to represent its content as morally true. The attitude conveyed by the echoic, non-truth- conditional use of ‘mail fraud is illegal’ is that of a distanced report of what moral re- descriptions are implied by syntactic occurrences of legality. 220 statements that happen to entail a moral statement; rather they are full- fledged moral statements that re-appropriate legal content in normative truth-conditional terms.159 To assume otherwise is to expose the long- cherished social facts thesis to great peril. The reason is that if committed legal statements entail a moral claim and the moral claim is false then the asserted legal proposition must also be false. It then follows that the truth of legal propositions is partly determined by moral facts which is obviously unacceptable on the part of the legal positivist.160 159 Richard Holton espouses a similar understanding of Raz’s distinction between committed and detached legal statements. He rejects the idea that ‘there is a class of committed legal statements, where this is understood as a class of legal statements that, by their very meaning, commit the speaker to the moral authority of the law. Rather, by making a legal statement an actor might pragmatically implicate that they are committed to the moral authority of the law.’ (see his ‘Positivism and the Internal Point of View’ in Law and Philosophy (1998) 17 (6): 597-625, 618). Raz seems to validate this interpretation when he remarks that ‘I find it impossible to resist the conclusion that most internal or committed legal statements, at any rate those about the rights or duties of others, are moral claims’ (in “The Purity of the Pure Theory,” Revue Internationale de Philosophie 35 (1981): 441- 459, at p. 455). 160 Richard Holton prefers to read Raz as landing himself voluntarily in contradiction. He attributes to Raz the fallacious assumption that committed legal claims are legal claims with moral content and then proceeds to highlight this error (cf. ‘Positivism and the Internal Point of View’, p. 613-4). Raz seems to license the alternative interpretation that I favor when he expresses his doubt as to whether ‘[it] is possible that while officials believe that legal obligations are morally binding [emphasis added] this is not what they say when they assert the validity of obligations according to law. It may be that all they state is that certain relations exist between certain people and certain legal sources or laws. Their belief that those relations give rise to a (moral) obligation may be quite separate and may not be part of what they actually say when asserting obligations according to the law. But such an interpretation seems contrived and artificial [emphasis added]’ (see his ‘Hart on Moral Rights and Legal Duties’ in Oxford Journal of Legal Studies (1984) 4: 123-131, p. 131) 221 It appears then that the most charitable reading of Raz’s account of the legal point of view forces him to accept the following distinction. On the one hand legal content can indeed be conveyed by normative statements in an echoic or non-truth-conditional fashion. Detached speakers merely echo the normative aspiration of a legal system but they express their disassociation from the question of whether the fact that the LAW requires that φ is also a reason to φ. On the other hand, committed or literal or truth-conditional uses of legal content necessarily have moral truth-conditions and as such they cannot be genuine legal statements on pain of succumbing to legal antipositivism. On this reconstructive interpretation Raz’s claim that legal propositions ‘are true or false according to whether there is, in the legal system referred to, a norm which requires the action which is stated to be one which ought to be done’161 has to be qualified accordingly. What is ultimately truth- evaluable, for the positivist, is not the echoically used normative content of the form ‘according to the law it is obligatory to φ’ but the conversationally implied content that ‘the LAW of S requires that φ’. This is precisely the content that Raz’s commitments license him to evaluate for truth or falsity. This content will be taken by the positivist to be a descriptive statement about what the LAW requires precisely because on the positivist view the sortal entity LAW qua source of requirements is not essentially normative. The latter content will be true iff the legal officials of system S purport 161 Ibid 177. 222 to represent the requirement to φ as normative. These truth conditions are perfectly compatible with the positivist’s descriptive account of the grounds of law. The second option is to explain the use of normative language in law in semantic terms. This is the avenue chosen by Shapiro when he draws the distinction between adjectival and perspectival uses of the term ‘legal’. Whereas Shapiro concurs with Raz in treating adjectival uses of LEGAL as full-fledged moral claims162, he takes a different approach with regard to perspectival statements of legal content. He introduces the notion of perspectival claims by remarking that ‘on the perspectival interpretation of the word “legal,” statements of legal authority, legal rights, and legal obligations are descriptive, not normative. They describe the normative point of view of the law [emphasis added]. Statements such as “X has legal authority over Y in S” are true just in case it is true that according to S’s point of view X has moral authority over Y.’163 It thereby follows that on Shapiro’s account perspectival assertions of legal content just are descriptions of what normatively holds according to the normative viewpoint of the LAW. By sharp contrast with Raz’s account, perspectival 162 ‘[What] are we imputing to someone when we say that she has “legal authority”? One possibility is that we are imputing a type of moral authority. On this reading, the word “authority” means the same as it does in moral contexts, roughly speaking, the power to impose moral obligations and confer moral rights, and the word “legal” functions as an adjective, identifying this kind of moral power. We are saying, then, that the person in question has moral authority in virtue of being an official in a legal institution. Call this the “adjectival” interpretation’ (Legality, supra note 14, p. 185). 163 Loc. cit. 223 claims are purely descriptive and the normative standpoint of the LAW figures in the semantic content of legal assertions and not in what is conversationally implied by their use. How is this possible? The beginning of wisdom, for Shapiro, is to assume that there is no semantic constraint as to whether a legal requirement of the following form is formally proper: the ‘It ought to be the case that, from the normative point of view of the LAW, A φ’s’. The latter parsing is normative de dicto but not de re in the sense that the deontic truth expressed by a statement of this form is not ontologically dependent on the properties or objects it quantifies over. On the standard (de re) truth- conditional semantics quantification is objectual in the sense that a quantified sentence ‘OUGHTLAW<Φx>’ is true just in case there is an object that Φx is true of. Assuming that de dicto quantification is a valid alternative, objects themselves do not satisfy truth-conditions; it is only objects designated in one way—in the present case, φ-ing from the normative point of view of the LAW164— instead of another that satisfy the truth-conditions for a given sentence. More precisely, for it to be the case that a sentence syntactically expresses a de dicto truth it must contain a pronoun or free variable within the scope of an opacity verb that is anaphoric on or bound by a singular term or quantifier that also occurs within the scope of that verb. In the legal 164 As Shapiro explains, the legal point of view with respect to a particular a legal system ‘is the perspective of a certain normative theory…that holds that the norms of that system are morally legitimate and obligating’ (Legality, supra note 14, p. 186). 224 context a quasi-formalized rendition of a de dicto statement of law would be something like ‘OUGHT: NPL(x φ’s)’. ‘OUGHT’ is being treated as an opacity verb, L is a sortal entity-denoting term (LAW), NPL is a definite description denoting the normative point of view of the LAW occurring within the scope of ‘OUGHT’ and x is a free variable denoting a class of agents falling within the verb’s scope. The normative point of view of the LAW stands for a set-theoretic object—a set of normative propositions—but ‘OUGHT’ operates on the proposition containing the legal point of view as a constituent. That is to say, ‘OUGHT: NPL(x φ’s)’ is a formalization for a sentence like ‘It ought to be the case that from the normative point of view of the LAW x φ’s. Allowing ‘OUGHT’ to take the normative point of view of the LAW within its scope—instead of merely quantifying over the agent variable ‘x’ and the act-type ‘φ-ing’—the proposition is in no way committed to the existence of its constituents, including whatever the legal point of view stands for. The latter sentence is also semantically de dicto in the sense that, for example, it does not permit substituting the normative point of view of the LAW for a potentially co-designating noun phrase like ‘the principles of the rule of law’ or ‘the principles of rule-utilitarianism’ salva veritate.165 To understand why on this interpretation the legal point of view is not transparent to the set of normative standards it actually refers to, consider 165 By ‘co-designating term’ I mean anything that at a given circumstance happens to refer to the same content that the legal point of view of a particular legal system at a particular time encompasses. 225 a particular set of normative propositions about what ought to be the case with respect to some domain of activity. Now suppose that the definite descriptions ‘the legal point of view of S’ and ‘the principles of rule- utilitarianism’ actually refer to the same set of normative propositions. Now the question arises as to whether on the presupposition that at a given instance there exists a co-designating term, the sentence ‘The legal point of view of S is correct’ is true iff the sentence ‘The principles of act- utilitarianism are correct’ is true. On Shapiro’s view the first sentence requires a de dicto reading such that the first sentence can turn out to be true whereas the second sentence is false. This intuition is clearly depicted in Shapiro’s remark that “[t]he normative theory that represents a system’s point of view is not a complete account of morality…[it] may be false from a moral perspective… the legal point of view always purports to represent the moral point of view, even when it fails to do so”.166 We could understand this purporting precisely in terms of the de dicto-de re distinction. Syntactically the legal point of view falls always within the scope of a deontic operator whereas semantically it is not intersubstitutable salva veritate with a definite description or singular term referring to the normative standards espoused by officials within the context of a legal practice. The reason is that the normative standards that are designated by the definite description ‘the legal point of view of S’ are designated in a way that renders their status as morally true irrelevant. 166 Ibid. p. 187. 226 In stark opposition to the property approach, assigning to legality a sortal truth value (the LAW) does not seem to threaten NEUTRALITY directly. In other words, both the legal positivist and the legal antipositivist can appeal to this semantic account without talking past each other. Before explaining why this is so I would like to intimate the substantive reason for ultimately rejecting this approach. The real problem with treating legality as a sortal entity term is that LAW qua sortal entity can never assume the semantic role of a source of normative requirements. This is a problem that equally affects the positivist and the antipositivist. The latter is obviously affected because on any antipositivist view it must be at least possible to assign moral truth conditions to legal claims. At the same time the legal positivist is no less affected as on both Raz’s pragmatic account and Shapiro’s semantic account of perspectival legal statements echoic uses of normative statements or de dicto normative truths about legal content are parasitic on the conceptual possibility that legal requirements are contingently reason- giving.167 To see why the sortal entity approach does not directly violate NEUTRALITY I suggest we explore how an episode of disagreement between our exemplary antipositivist, Thomas, and our positivist objector, Joseph, can be decoded. On the current interpretation the object of their disagreement cannot be truth-conditional assertions featuring deontic modals or concepts but assertions about what the sortal entity LAW 167 Otherwise it would be conceptually impossible to felicitously attribute to legal officials a sincere or pretended representation of what the LAW requires as morally binding. 227 requires. This is not to deny, of course, that for the legal antipositivist the same assertion if true will also serve as the truth condition of a committed assertion like ‘it is legally obligatory to φ’ precisely because she takes legal requirements to be inherently normative. Conversely, for the legal positivist the same assertion, if true, does not serve as a truth condition for anything but merely figures as part of the content that is pragmatically conveyed by way of the echoic or non-truth-conditional assertion of the form ‘it is legally obligatory to φ’. That being said, suppose that Joseph utters (1) and Thomas (2): (1) Joseph: The LAW of S requires that φ; (2) Thomas: The LAW of S does not require that φ; This exchange seems to be an instance of genuine jurisprudential disagreement. Thomas’ negation of (1) is not metalinguistic but descriptive or truth-conditional in the sense that he denies the truth of Joseph’s statement that the LAW of S requires that φ. Their disagreement is genuine because both concur in their treatment of LAW as a sortal entity that operates as a source of requirements. What they disagree about is the truth condition of ‘the LAW requires that φ’. Joseph believes that [the LAW requires that φ] is true iff the legal officials at S purport to represent the requirement to φ as morally binding, whereas Thomas believes that the same content would be true iff the fact that the LAW requires that φ is a reason to φ. This dispute accurately depicts Thomas’ and Joseph’s diverse 228 jurisprudential allegiances and therefore represents their disagreement as genuine. What I am about to argue is that despite appearances the semantic treatment of legality as a sortal entity violates NEUTRALITY in an indirect way. What makes this treatment problematic is the fact that statements featuring the LAW qua source of requirements cannot admit of normative truth conditions as a matter of semantic (and not just jurisprudential) fact. This results in an indirect violation of NEUTRALITY in the sense that regardless of what jurisprudential view we wish to convey by using the locution ‘the LAW requires that…’ its literal use in a normative context is semantically infelicitous. This is obviously a tiebreaker argument that should alert both legal antipositivists and positivists. The former should be alerted for the obvious reason that by agreeing to ascribe to legality the semantic value of a sortal entity they will systematically fail at representing the truth of legal content as morally evaluable. The latter should be no less indifferent as the truth of statements like ‘the LAW requires that φ’ depends on the capacity of legal officials to represent legal requirements as if they had independent normative force. If there is a semantic barrier to treating legal requirements as contingently normative requirements then their very act of representation is infelicitous. The concern I wish to raise is motivated by John Broome’s copious inquiry into the nature of requirements in general. Broome identifies 229 exemplary cases of what he calls ‘source requirements’ but he proceeds very cautiously stressing that not all source requirements are also normative requirements. He remarks that ‘[some] sources are normative in their own right; morality and prudence or self-interest are presumably among them…Other sources derive normativity from a different source. For example, law often derives normativity from prudence, because it is often prudent to obey the law. You may also be under requirements that are not normative at all. For example, the requirements of an unjust political party are generally not normative, even for members of the party’.168 Broome does not go in depth into the metaphysical grounding of the normativity of morality or prudence nor does he pay any particular attention to the semantics of legal statements. His main argument is semantic but fortunately this is all what we need at least with respect to the semantic treatment of legality as a normative kind of some sort. Whereas Broome’s extensive analysis of the semantic behavior of different types of requirement cannot provide conclusive evidence for the positive claim that morality or prudence qua sources of requirements are normative, it does provide sufficient evidence for the negative claim that law qua source of requirements is not essentially normative either in a derivative or in a non- derivative sense. 168 John Broome, Rationality Through Reasoning, Oxford: Blackwell Publishing, 2013, p. 122. 230 That being said I must be very cautious with words. My argument is not that the possibility of legal normativity and along with it the possibility of legal antipositivism must be rejected on purely semantic grounds! What I argue instead is that particularly assigning to legality the semantic value of a sortal entity that operates as a source of requirements is a bad option precisely because it ultimately provides the wrong kind of reasons—namely, semantic instead of broader philosophical reasons—for believing that law is not normative after all. Nothing is yet settled with regard to the proper semantic value of legality nor have I offered any substantive argument in favor or against the idea that upon proper categorial identification law can be genuinely normative. I aspire to settle the former question in the immediately following last section of this chapter. As to the latter question I shall withhold judgment for the second part of this thesis that deals specifically with the question of legal normativity. With these caveats in mind I shall dedicate the rest of this section to demonstrating how Broome’s theory of requirements can render our reasons for rejecting the sortal entity approach conclusive. In one sense of the term ‘requirement’ almost anything can count as being related to a requirement of some sort. In Broome’s terminology, there is one sense in which ‘the subject of ‘requires’ denotes a person or thing that has some sort of real or presumed authority: ‘The minister requires the ambassador's presence’; ‘The law requires you to drive carefully’; ‘The bill requires payment’; ‘Fashion requires knee-length skirts’; ‘My conscience 231 requires me to turn you in’. In these case I say ‘requires’ has the ‘source’ sense. I call the minister, the law, the bill, my conscience and so on ‘sources’ of requirements’169 This is the sense that appears in sentences of the form ‘S requires of N that p’, where S is a source of requirements which is precisely the form that, grosso modo, has served as a template for truth- conditional analyses of syntactic occurrences of LEGALLY in modal (legally ought) and relational (legally obligated) predications. On both the relational and the deontic reading legal propositions appeared to determine their truth conditions as being respectively about what ‘the LAW of S requires of A to do’ or about what n-tuple ( As Broome himself remarks, LAW is the perfect instance of a source requirement whilst adding that ‘the requirements issued by a source are not necessarily normative. We do not necessarily have any reason to satisfy them. However, no doubt some sources do issue requirements that are normative.’170 On the other hand, there is a further sense of what ‘requirement’ stands for with regard to which LAW seems to be an unfitting case. This is what Broome calls the property sense of requirements by virtue of which agents acquire an evaluative property of some sort whenever they act on a specific requirement. Agential evaluation ‘appears in constructions where its subject denotes a property: ‘Beauty requires hard work’; ‘Staying healthy requires you to eat olives’; ‘Success in battle requires good horses’; ‘Crossing the 169 Ibid, p. 107. 170 Ibid p. 113. 232 Rubicon required determination’. Here I say ‘requires’ has the ‘property sense’.’171 Philosophically more interesting syntactic manifestations of property requirements include abstract nouns like morality, rationality or prudence. On a simple modal analysis to say that ‘Morality requires of A that φ’ in the property sense is to say that ‘if A is moral, she φ’s’. The same analysis applies to requirements of rationality and prudence. To put it more graphically, for it to be the case that something requires, in the property sense, of A to φ is for it to be the case that the act is evaluatively reflective of the agent.172 The latter is depicted by an agent’s possessing an evaluative property like being moral, rational or prudent. A more informative analysis that overcomes the pitfalls of standard modal logic draws upon the inherent gradability of property requirements. Properties like being moral, rational or prudent are not absolute but their possession comes in degrees such that the degree of someone’s rationality or moral integrity is always relative to a counterfactual scenario where a given property requirement is not satisfied. Broome develops a more resilient version of Michael Smith’s initial comparative interpretation of property requirements which boils down to the modal claim that: 171 Ibid. p. 107. 172 The ascription of an agential counterpart to moral obligatoriness is closely related to a conception of agential (as opposed to the evaluative or situational) ought as a ‘control verb’. Paul McNamara prefers to talk about ‘agentially reflective obligations’ in the sense that ‘It is Agentially Reflective on John Doe that p iff p is consistent with Doe’s abilities and it is predetermined that: p is true only if Doe brings it about that p’; see his ‘Agential obligation as non-agential personal obligation plus agency’ in Journal of Applied Logic (2004) 2 (1): 117-52, at 125. 233 Necessarily, if N is as F as she can be, or N is Fer than she actually is, then p. Broome unpacks this formula by remarking that the proposition that p ‘is true at every world where either N is as F as she can be or N is Fer than she is at the actual world…a property requires of you whatever is a strictly necessary condition for you to possess the property to a higher degree than you actually do, or to the highest degree’.173 As noted above, requirements of rationality, morality and prudence admit of both a source and property reading. That is to say, they operate both as codes and as properties denoting an evaluative capacity or attainment. More interestingly, these two senses of requirement are modally related such that to say that rationality, morality or prudence requires of A that φ entails that, necessarily, if A is rational, moral or prudent, she φ’s. In other words, to possess the respective evaluative property is to satisfy all requirements that the relevant source puts you under. Commenting on the asymmetrical modal connection between source and property requirements Broome says that ‘[t]he code of requirements [that is, the source or sortal entity] comes first, and I have defined the corresponding property on the basis of the code. It is not that the property comes first and the code aims at achieving the property.’174 The dependence of the property on the source sense is a natural consequence of the ineradicable locality of source requirements, that is to say, of the fact that, as Broome remarks, ‘[w]hat 173 J. Broome, Rationality Through Reasoning, supra note 37, p. 110. 174 Ibid. 114. 234 prudence requires of you in your actual imprudent state may not be what it would require of you if you were prudent.’175 The preceding short digression in the semantics of requirements purports to lead to an informative remark about law’s peculiar semantic behavior qua source of requirements. Whereas LAW can assume the semantic role of a non-normative source requirement it can never operate as a property requirement. Broome himself hastily pinpoints at this legal peculiarity when he notes that ‘[t]he names ‘morality’, ‘rationality’, ‘prudence’ and the rest sometimes refer, not to properties, but to sources of requirements. When they are read that way, ‘morality requires’ and the rest follow the model of ‘the law requires’. The law is a source of requirements, and ‘the law’ is not ambiguous in the way that ‘morality’ and the rest are; it is never [emphasis added] the name of a property that can be possessed by a person.’ 176 Unfortunately, Broome refrains from taking a more committed stance with regard to the further implications this semantic peculiarity may have for LAW. That being said, my use of his verdictive comment about law’s intrinsic recalcitrance to a property reading will have to be autonomous with respect to its grounds and ambition. The argument I purport to develop is ultimately aimed at rejecting a semantic analysis of law qua sortal entity on the grounds that LAW fails to accommodate both senses of the concept of requirement. Whereas property requirements are logically dependent on source requirements they 175 Loc. cit. 176 Ibid. p. 112. 235 constitute an indispensable condition for the normativity of source requirements.177 If a local source requirement fails to entail a local property requirement, then the latter cannot figure in the truth conditions of statements of obligation or of statements featuring deontic modals. For instance, a rationality-based reason to F has the status of a reason in virtue of the more basic fact that one ought to be rational. This is not to say that if a source requirement logically entails a property requirement then it is necessarily normative. Nor is it to say that the normativity of source requirements is derivative in the sense that it is ultimately based in evaluative facts about what is good about being rational.178 The idea rather is that it a necessary but not sufficient condition for the normative character of a source requirement that it entails an association between its satisfaction and the possession of an evaluative property without further implying that the absolute or relative goodness of this possession is what ultimately grounds the normativity of source requirements. 177 Broome is clear about the contingent normative nature of source requirements. He remarks: ‘[not] all requirements necessarily contribute to determining what you ought to do. The ones that do I call ‘normative’. A normative requirement to F constitutes a reason to F. Sources that issue normative requirements are normative sources’ (in Rationality Through Reasoning, supra note 37, p. 121). The crucial connection appears at a later stage of Broome’s argument. For instance, a rationality-based reason to F has the status of a reason in virtue of the more basic fact that there is a reason to be rational. This is how Broome frames the normativity questions about requirements of rationality when he 178 Broome rejects what he calls the ‘Indirect Strategy Through the Property of Rationality’ according to which the fact that you ought to be rational is bases ‘on derivative grounds, so it would depend on showing that being rational is effective at satisfying requirements that stem from other sources [like morality or prudence]’ (ibid. p.183). 236 The analogical impact of this argument is that if law is a sortal entity that can operate as a source of normative requirements then necessarily there must be a property that can be attributed to someone who satisfies all individually applicable legal requirements. This property would figure in propositions of the form ‘necessarily if A φ’s, A is legal’. But there is no such property of agents, so law cannot be a sortal entity that could operate as a source of normative requirements! Before addressing an easily anticipated objection to this line of reasoning, I should be more clear about motivates the claim that it is insufficient to settle the question of the semantic value of LEGALLY by simply saying that it denotes a source of requirements that serves no normative purpose. Differently put, the idea is that if LEGALLY has a requirement-related semantic value, it cannot be anaphoric to another non-derivatively normative source of requirements like prudence. Either it denotes a distinct sortal entity that can essentially or contingently operate as a source of distinctly legal normative standards or we should look for an alternative semantic value that does not directly involve the notion of a standard. As I remarked earlier above, the apparent normative flavor of these syntactic occurrences does not serve as conclusive evidence in favor of legal antipositivism as it remains possible to model statements about legal obligation either as echoic de dicto rather than de re deontic truths. Nevertheless, even if this modelling is possible, this does not amount to the claim that statements of legal obligation or statements about what one 237 legally ought to do are bereft of their normative flavor. The only facilitation offered by this bypass is to model law as being perspectivally or purportedly binding. That is to say, it can only affect the scope of the obligation or deontic modals but not their semantic content. Even in cases where normative claims are advanced under the veil of disconfirmation by the all- things-considered moral truth, deontic concepts and modals preserve their normative force. In the light of these thoughts, I believe that it would be appropriate to conclude that, despite syntactic appearances, LEGALLY does not behave as a modal or predicate modifier precisely because LAW qua source of requirements fails to entail any property requirements. A plausible objection to this suggestion would be to say that contra Broome there are property requirements in law as evidenced by attributions of the property of being law-abiding. This objection, however, fails by its own lights. For the purpose of disambiguating law-abidance’s failure to operate as a property requirement, I will work with William Edmundson’s aretaic account of law-abidance. According to Edmundson, law-abidance considered as a virtue is a ‘complex character trait whose core consists in the actor’s acceptance of a duty to comply with…“retail” operations of the legal system, a disposition so to comply, and a disposition to regard the bare unlawfulness of an action as a nontrivial and normally adequate though not necessarily conclusive reason against performing it. The virtue does not, however, comprise a disposition to obey the law qua law, 238 regardless of its moral merits.’179 Edmundson contrasts “wholesale” operations of a legal system (legislative enactment, administrative rulemaking, or adjudicatory precedent) with “retail” operations which he defines as ‘specific interferences with the ongoing stream of conduct by specific measures focused on individuals — such as issuing a subpoena or a summons, revoking a license, making a traffic stop or an arrest or a judicial sale.’180 What is lucidly conveyed by this account is that the attribution of the property of being a law-abiding citizen does not piggyback on a serial performance of one legal duty after another. In Edmundson’s own words, ‘[l]aw-abidingness (unlike obedience) is not linked to an act-category, nor to any collection of acts compliant with the law. Moreover, the law-abiding may on occasion depart from the law just as the courageous may turn away from danger.’181 Being a virtue it cannot figure in entailment relations to local source requirements that always focus on placing local, piecemeal demands as a response to our actual imperfect situation. If there is any sense in which source requirements entail property requirements is that the former serve to tailor the global character of the latter to the deliberative context of actual agency. As a result, it would make little if no sense to claim that the proposition that LAW qua source requires of A that φ entails 179 William A. Edmundson, ‘The Virtue of Law-Abidance’ in Philosophers’ Imprint (2006) 6(4): 1-21, p. 2. 180 Loc. cit. 181 Ibid. p. 4, fn 6. 239 that, necessarily, if A is LAW-ABIDING, she φ’s. A further reason why law- abidance cannot furnish the property sense we are looking for is that, by sharp contrast with rationality, morality or prudence, it is not the sort of property that figures in comparisons with actual and counterfactual scenarios. In the opposite case, if φ were required of A by the LAW it would follow that φ is a condition required for A to be more law-abiding than she otherwise would be, or perhaps more law-abiding than she actually is. Whereas law-abidance qua virtue is diachronically attributable it is not the kind of evaluative trait that is scalarly measurable. III.3. A Minimal Semantic Framework If there is a plausible outcome of this semantic discursion that should alarm us, this would be the direct or indirect violation of NEUTRALITY. As emphasized at the beginning of this section, it would be like doing ontology on the cheap if we anticipated the settlement of the dispute between positivists and antipositivists at the level of semantics. This constraint is also indistinctly applicable to legal propositionalists of diverse jurisprudential backgrounds who seek to derive the truthmakers of legal propositions from their truth conditions. The universality of this constraint is evidenced by the fact that even by the lights of a legal propositionalist the definitive settlement of the dispute between those of a positivist and those of an antipositivist allegiance is sought at the metaphysical level pertaining 240 to the grounds of the truthmakers of legal propositions and not legal propositions themselves! I believe that I make no daring step when I assume that all parties to this dispute converge in their disposition to settle this matter at a theoretically more committing level. That being said, the purpose of establishing a common semantic platform remains visibly valuable. On the one hand it assures the meaningfulness of the disagreement between positivist and antipositivist propositionalists about the grounds of legal facts. Without a commonly acceptable logical regimentation of assertions of legal content talk of legal facts would irresolutely vacillate between semantically non-interchangeable theoretical claims. A meaningful engagement in the dispute about what grounds legal facts would be hardly attainable if we tolerated casual alternations between reference to facts about which actions are legal or illegal to reference to facts about what the LAW requires or about the existence of legal norms. The reason has already been illustrated by the two preceding semantic hypotheses. Being unconditionally permissive with regard to the available semantic roles for various syntactic manifestations of legality may end up favoring prematurely particular positivist or antipositivist views. This would be crucially problematic for propositionalist theories of law precisely because they model their ontological commitments on regimented linguistic representations of legal content. 241 On the other hand, establishing a common technical language that can impartially represent true legal propositions is no less important for a legal anti-propositionalist or, as I prefer to call it, a truthmaker theorist. Even though a truthmaker theorist would strongly resist the temptation of grounding her hypotheses about the proper truthmaker for legal propositions on facts about the truth conditions of the latter, she retains an equal stake in the discussion of what is that which is made true by this or that truthmaker. For instance, if, arguendo, we conclude that the sentence [it is legally obligatory to φ], or more precisely, its regimented analogue [the proposition that it is obligatory to φ is a legal norm of S] is true iff the proposition that a class of agents A stands in a relation of obligation to φ constitutes a legal norm of S, a truthmaker theorist is not committed to adopting the further conclusion that the truthmaker of the proposition [the proposition that A is obligated to φ is a legal norm of S] is the fact a legal norm exists in S. That being said, she is committed to accepting that [the proposition that A is obligated to φ is a legal norm of S] is literally true. Even though by the lights of the truthmaker theorist her commitment to what is literally true does not determine her ontological commitment, it remains a theoretical commitment nonetheless. The former type of commitment is representational, not ontological but it is crucially important for enabling the truthmaker theorist’s meaningful participation in the substantive ontological dispute with legal propositionalists. 242 Fortunately, there is no conclusive reason to feel aggravated by the semantic recalcitrance of legality. The elusive semantic behavior of this syntactically versatile concept is first class evidence that perhaps we have been unwarrantedly hasty to associate representations of legal content with familiar patterns in moral semantics. In this regard I would invite the reader to briefly join me in entertaining the hypothesis that legality’s syntactic interactions with action-denoting predicates (property approach) or with deontic predicates or modals (sortal entity approach) should not incline us to be driven by the force of surface analogies. That is to say, we should resist for a moment the thought that we should look for semantic models that have already been tested for concepts like morality or rationality which seem to display similar syntactic behavior. There is still, I believe, an alternative way to determine in a principled manner the semantic value of typical syntactic manifestations of legality without tilting the debate between legal positivists and antipositivists. This is precisely the context within which I would like to flag the importance of evaluating an alternative semantic route in the light of this caveat about violating jurisprudential neutrality. Whereas the question of where to determine the bar of value neutrality is equally applicable in discussions about moral semantics, I would dare to remark that in the legal case their relevance is more intricate in a way that justifies refraining from analogical applications of available semantic models. The reason is that there is an unpronounced difference in the way in which the normative flavor of moral 243 language and the normative flavor of legal language pose a challenge for the metaethicist and the legal philosopher respectively. On the one hand it is not just that there is little doubt that morality is normative in a more or less robust sense but it would also sound absurd to claim that merely adopting this view can vitiate the task of providing a value-neutral semantics for this type of discourse. Deontologists, consequentialists and virtue-ethicists do not seem to be worried by the fact that taking the normativity of moral discourse as a given for the purpose of constructing a semantic theory will eventually result in smuggling a Trojan horse in someone’s neighborhood. Their threshold of alertness is high enough to accommodate this premise as a non-alarming factor. By contrast, substantive disagreement in moral semantics kicks in as soon as the nature and possibility of moral truth are subject to evaluation. The prospect of tilting the debate between different substantive moral theories starts to become visible upon the emergence of questions about the semantic role of ought and its context-sensitivity. For instance, a deontologist may be favorably disposed towards a predicative reading of ‘ought’ which can better account for the agent-centered aspect of moral deliberation. Conversely, a consequentialist may be more inclined to favor a more traditional treatment of ‘ought’ as a propositional operator or as a dyadic relation between agents and propositions rather than actions. 244 On the legal side of the spectrum the challenge is considerably different. Whereas there is a growing consensus among legal philosophers that legal language has a normative flavor this hypothesis does not encompass the further assumption that law is normative in any robust sense. That is to say, there is a consciously preserved gap between the normative flavor thesis and the normativity thesis that any account of legal semantics seeks to accommodate. The reason is obvious; if someone’s anticipation of the normativity of law is already affirmed by the way in which legal discourse is semantically regimented it would immediately signal an alarm for positivist participants to this debate. By the same token, it would be an unwelcome result for defenders of legal antipositivism if someone’s deflationary or flatly dismissive account of legal normativity is already portrayed by the semantic value we assign to syntactic manifestations of legality. This delicate situation was clearly encountered in the preceding discussion about the possibility of treating legality as a property or a sortal entity. The result witnessed above was a premature bifurcation of the discourse into parallel discussions. On this picture, the pool of semantic alternatives becomes considerably shallower, unfortunately, at the expense of achieving a more fine-grained regimentation of legal talk. A. Legal Propositions as Recipes for Making Law 245 By excluding the possibility of analyzing legal talk so finely that it can emulate the granularity of moral talk we come closer to becoming aware of the limits of informative appeals to extra-legal analogies in thinking about law. At the same time we come closer to realizing that legal talk has its own subtleties that remain unpronounced for as long as we insist in regimenting legal discourse in the likeness of other types of normative discourse. More precisely, I plan to argue that a way out that can keep both positivists and antipositivists on a platform of meaningful disagreement is to forgo the prospect of trying to regiment legality as a standard-denoting property 182 or as a source of standards and explore, instead, the option of understanding legal statements as carrying information about recipes for making legal content. I am fully aware that, at first approximation, entitling this alternative route as a quest for articulating the best recipe for making law may result in a weakening of my readers’ trust which I tried to earn at the beginning of this section when I proclaimed my intention to propose a semantic platform that will be indistinctly hospitable for legal positivists and antipositivists alike. Introducing some new, perhaps uncanny, terminology inevitably makes my position more vulnerable to critical remarks about recoiling behind the use of cryptic terms or trying to insulate legal discourse beyond necessity. That being said, the anticipation of this criticism make me no less determined in my aspiration to demonstrate that 182 By standard-denoting I do not mean to refer only to the case of treating legality as a normative property of some sort. I use the notion of a standard in a looser sense that also includes descriptive accounts of legality as the property of being legal valid according to a set of descriptive criteria. 246 what appears to be a foreign vocabulary is actually a formal or more canonical depiction of a very familiar way of talking about law. In broader philosophical discussions locutions like making a proposition true or making an act right, composing a water molecule, and constituting a statue are unsurprisingly common. Building metaphors as some philosophers prefer to characterize them183 are shortcuts for an impressively nuanced class of relations pertaining to the creation of less fundamental entities by more fundamental ones. Building relations are not metaphysical bedrock like universals, states of affairs or tropes. As most if not all relations they stand in need of further explanation or grounding. Nevertheless they do perform a salvaging task at least for those philosophers who are less willing to resort too quickly to paraphrasing talk about less fundamental phenomena into ontologically more modest talk. The main intuition behind the building metaphors is that predications of “construction” can be more illuminating than immodest. One need not be an unbridled pluralist about what there exists in order to appreciate the fine- graining effect of allowing some building metaphors to occupy a permanent position in our vocabulary. As I aspire to demonstrate building metaphors are no less frequent in legal discourse and that’s not a matter of making one’s philosophical prose 183 See Karen Bennett, ‘Construction Area (no hard hat required)’ in Philosophical Studies (2011) 154 (1): 79-104; Kris McDaniel, ‘Structure-making’ in Australasian Journal of Philosophy (2009) 87: 251–274. 247 more illustrative. The vocabulary used to frame these metaphors reflects the user’s substantive views on which facts make law but the common pattern is prominent. For instance, the building metaphors used by legal positivists are inspired by a familiar attraction to analogies from the practice of promising and rule-governed activities like games. Thus we frequently encounter instances of the relevant prose in arguments about how authoritative directives constitute legal norms or how legal rules enable the constitution of offices, powers or normative statuses. In the same tradition of thought, we also witness descriptions of facts making norms legally valid or legal norms composing the content of a legal system. Building metaphors are equally traceable in the antipositivist literature as evidenced by references to the failure of morally defective laws to constitute legally binding norms or, more recently, to the question of how facts make law. Before fleshing out my alternative proposal I should be more cautious with my use of building metaphors from now onwards. The scope of “building” relations is wide enough to include explanatorily basic relations like truthmaking and grounding. Propositions are made true by extra- propositional entities and less fundamental facts are grounded in more fundamental facts. Given the latitude of building talk in metaphysics I owe an explanation as to what kind of building relation I intend to inject into the semantic content of legal propositions. By way of elimination, I should begin by saying that I do not intend to argue that legal propositions are 248 propositions about which facts make legal propositions true nor propositions about which facts ground the truthmakers of legal propositions. This equivocation would render utterly unintelligible all the effort I have put so far in trying to demarcate one step from another in the descent from legal propositions to their truthmakers and ultimately to the grounds of their truthmakers. What I purport to convey instead is that the explanatory descent just described features one more building relation, this time, at the truth-conditional level. As I have mentioned at earlier stages of this exposition the relation I have in mind is that of abstract constitution which in the legal case obtains between non-legal constituting objects or facts and legal norms or parts of legal content. The resulting picture is worth being sketched before developing the semantic argument that supports it. By reconfiguring the site of jurisprudential disagreement as being about the grounds of the truthmakers of legal propositions we have acquired a methodologically more accurate depiction of our descent trajectory from the level of linguistic representation (legal propositions) to an intermediate level of the worldly counterpart of our representations of legal content (legal truthmakers) and finally to the ground level of facts in virtue of which these worldly counterparts obtain (grounds). The idea is that each level features a different building relation performing a distinct role. True representations of legal content will be regimented in such way that their truth holds iff the semantic value of the dummy sortal [the proposition that it is obligatory to 249 φ] constitutes a legal norm or a part of the content of the law. The relation of abstract constitution will thus figure in the truth conditions of legal propositions. At the next level, legal facts or facts to which the latter are reducible or other kinds of facts (like facts about enforceability) stand in a relation of truthmaking to legal propositions. Finally, more fundamental descriptive and/or normative facts ground the facts that make legal propositions true. In what follows I will be focusing on the application of my alternative proposal in the semantics of universal legal statements. By universal legal statements I mean any statement to the effect that something is generally the case in a particular legal order. Universal legal statements are repeatedly exemplifiable such that all universally quantified claims about what rights, obligations, prohibitions and institutional powers obtain within a specific juridical domain qualify as universal legal statements. More specifically, I shall argue that legal claims carry information about recipes for constituting legal content. This kind of making-recipe represents a moment of creation, so to speak; it is as though we are told: take some substance S and add some structure to it and you will get a legal norm of a part of legal content. After this meandering chain of arguments I feel more courageous to invite the reader to consider the possibility that this is what legal propositions are all about and, consequently, that this is the representational material we legal philosophers try to test for truth. I do not intend to use this “recipe” jargon as a metaphor but as literally as it gets. 250 Assertions of legal content are assertions of which “raw” material constitutes legal content and as such they perfectly qualify for being labelled as making-recipe claims.184 Venturing to sample the best material for our law-making recipe will have to wait a bit more. The figurative impression that my argument inevitably conveys forces me to slow down its pace and begin with some preliminary work. This will include a template analysis of the logical form of legal propositions followed by an examination of the problems arising with regard to the semantic value of the major constituents of this alternative formulation. For illustrative purposes, my suggestion is that in a conversational context about the law of the State of California the sentence ‘one is legally obligated to have her ID card inspected while entering a public museum’ can be logically reparsed as ‘The proposition that one is obligated to have her ID card inspected while entering a public museum is a legal norm/a part of the content of the law of the State of California’ or, in 184 The idea of casting the semantic information conveyed by constitutive claims in terms of making-recipes is not mine. I owe this term to Stephen Barker and Mark Jago. In their own illustrative prose, ‘[claims] of material constitution carry information about recipes for making things. If we tell you that the cardigan is made of one piece of thread, then we convey the information that one way of getting a cardigan is to take some thread and process it in a certain way. A single wool thread is part of at least one recipe for a cardigan. This kind of making-recipe says: take some substance and add some structure to it. In the cases that interest us, the original substance survives the change in its structure: the thread remains, now structured to make up a cardigan. Crucially, such constructive making-recipes are asymmetric. They involve the addition of structure: the cardigan is the wool with suitable structure added. One cannot add structure to a cardigan to obtain a single thread.’ (S. Barker and M. Jago, ‘Monism and Material Constitution’ in Pacific Philosophical Quarterly (2014) 95 (2): 189-204, at 190). 251 metalinguistic notation, P*L. Consequently, this logical form will serve as the basis for determining the truth conditions of legal propositions. In what follows I will elaborate on three semantic questions emerging from this re-parsing. The first one regards the semantic contribution of the copula ‘is’, the second one is about whether the semantic ambiguity of the dummy sortal “the proposition that…” may compromise NEUTRALITY and the third one is about the systematic ambiguity of the semantic value of constituted legal content between legal norm and a part of the content of the law. With regard to the former, I will argue that the appropriate semantic value for the copula is the relation of (abstract) constitution. With regard to the second question I will suggest that the semantic value of the dummy proposition-description is indeed sensitive to one’s substantive jurisprudential view but that poses no essential threat to the preservation of a theory-neutral semantics for assertions of legal content. With regard to the third question, I will suggest we uphold the systematic ambiguity in representing the constitutive output of legal statements on the grounds that its preservation is a necessary concession in order to prevent an epistemological dispute between atomistic and holistic conceptions of legal reasoning to preempt our semantics. B. The Semantic Value of the Copula 252 Let us begin from the question about the copula and its semantic value. Settling it in advance is crucially important for the felicitous course of my argument as its main pillar is founded on the claim that legal claims are claims of abstract constitution. Recall that on the logical regimentation I have suggested, legal claims are modeled as a copular sentences of the form ‘the proposition that it is obligatory to φ IS a legal norm/a part of the content of the law’. To illustrate my point I shall endorse E.J. Lowe’s quadripartite distinction of uses of ‘is’ as a copula. As Lowe explains, we have: ‘(1) The ‘is’ of attribution, as in ‘Socrates is wise’ and ‘Grass is green’. (2) The ‘is’ of identity, as in ‘Napoleon is Bonaparte’ and ‘Water is H2O’ (at least on one common reading of the latter). (3) The ‘is’ of instantiation, as in ‘Mars is a planet’ and ‘A horse is a mammal’. And (4) the ‘is’ of constitution, as in ‘This ring is gold’ and ‘A human body is a collection of cells’.185 The ‘is’ of attribution will not be of much interest here as I have already provided some general grounds for thinking that despite syntactic appearances there is no such thing as the property of legality. There are two more reasons peculiar to treating ‘being a legal norm’ as a property attribution that render this interpretation spurious. First, if the copula in predications of legal content is attributive it follows that it forms a 185 E.J. Lowe, More Kinds of Being: A Further Study of Individuation, Identity and the Logic of Sortal Terms, Oxford: Wiley-Blackwell, 2009, pp. 3-4 and 33-41. 253 semantically unanalyzable unit like ‘_ is L’. Being a single semantic unit it cannot assume the role of grammatical subject like say ‘horse’ does in ‘being a horse’ and ‘a horse is a mammal’. Consequently, we would not be in a position to meaningfully utter nominalizations like ‘legal norm A of the State of California is identical with legal norm B of the State of Michigan’. Second, it would be quite odd to assume that propositions, besides their being true or false, can also bear other formal, yet non-trivial, properties like being legal, moral or aesthetic; the latter predicates are more apt for qualifying as second-order properties of the properties of truth and falsity themselves rather than of the propositions they are borne by. Nevertheless, what I aim to suggest is that a predication of the form ‘the proposition that P is a legal norm of S’ should not be regarded as semantically analyzable to ‘the proposition that P is L(egally)-true’ such that predications of legal content are predications of truth in a legal context. Depending on one’s semantic allegiances—substantive or redundantist—the latter rendition would again collapse into two familiar statements: either into a truth- conditional statement like P is true if and only if P ∈ L where L is a possible world deemed as ideal from a particular juridical set of rules, or into a deflationist statement like ⌈ ⌈ P ⌉ is true if and only if P ⌉ in which case there is no question of legal truth as part of what it is to understand legal content much in the same sense that there is no question of moral truth or truth simpliciter! 254 With regard to the ‘is’ of identity I will reserve judgment in the hope that in the course of my argument it will become more evident why legal claims cannot be understood as claims of relative or absolute identity. This leaves me with the two other uses of ‘is’ that may be presented as competing candidates for providing the semantic value of ‘is’ in our present case. One could argue that the copula in ‘P is a legal norm (of S)’ is being used in the instantiation sense such that P is an instance of the sort or kind ‘L-norm’. In this case the predicate ‘L-norm’ is a sortal term that can flank both sides of the ‘is’ copula by assuming a subject position in sentences like ‘a legal norm (of S) can be altered or derogated’. On an alternative reading—which is the one that I will ultimately favor for reasons to be specified in what follows— the ‘is’ in the predicate ‘P is a legal norm (of S)’ is that of constitution as in the example ‘This lump of metal is the Statue of Liberty’. According to Lowe the crucial difference between the ‘is’ of instantiation and the ‘is’ of constitution consists in that in predicates of the former but not of the latter type it is implied that the subject P complies with the identity criterion associated with the sortal term ‘legal norm’. Lowe uses Peter Geach’s example of Tibbles, a cat sitting on a mat, and the lump of feline tissue C located at exactly the same position at exactly the same time. Lowe’s distinct treatment of the predicates ‘Tibbles is a cat’ and ‘C is a cat’ is precisely premised on the claim that the ‘is’ in Tibbles’ case is that of ‘instantiation’ whereas in C’s case it is the ‘is’ of constitution. In the instantiation case Tibbles shares the same identity criteria with the sortal 255 term ‘cat’, whereas the compound noun ‘this particular lump of feline tissue’ is itself of a wholly different kind (lump of feline tissue) and hence its identity criteria are different from that of the sort ‘cat’. For example, upon the removal or destruction of a single hair C will cease to exist and a new lump of feline tissue (minus the removed hair) Cn-1 will come to existence, whereas removing a hair from Tibbles while not put an end to his existence qua concrete particular and the term Tibbles will be still referring to a cat. By analogy let’s assume that the predicate ‘P is a legal norm of S’ has a ‘Tibbles’ (instantiation) and a ‘Lump of feline tissue (C)’ (constitution) reading. Given the standard building locution ‘A makes P c’, the issue arises as to whether ‘A makes P instantiate legal norm-hood’ or whether ‘A makes P constitute a legal norm S’. The crucial difference lies in the ontological profile of P. Assuming that propositions are structured entities and that P is like Tibbles, then even if some of P’s constituents change, P could still be ‘Tibbles’ and not the distinct entity ‘Tibblesn-1’. But that is certainly absurd at least when it comes to changing the propositional content of legal norms. It is a juridical platitude that even minor syntactic changes in the content of legislative materials, administrative directives or judicial opinions can affect the content of the law On the other hand if P is like the particular lump of feline tissue, changing its content amounts to changing its identity profile: now we have Pn-1 rather than P. The representational upshot of these distinctions is that on the instantiation model legal claims represent one sortal entity (legal norm) as 256 existing whereas on the constitution model we get two distinct sortal entities, that is, the lump-of-feline-tissue-like sortal entity the nominal construction P is an instance of, and the sortal entity ‘legal norm’ that is being instantiated by the distinct abstract object which is constituted by P. What is crucial is that the constituting kind instances are distinct from the constituted kind instances for otherwise the relation of constitution would lapse into am identity statement. Much in the same sense in which a lump of metal or a lump of clay constitutes a statue of Goliath without the lump’s instantiating statuehood, a legal norm is constituted by the referent(s) of the dummy sortal ‘the proposition that….’ without presupposing that the latter referent is itself a legally valid norm. On this approach, the semantic value of the copula in a claim of the form ‘the proposition that it is obligatory to φ IS a legal norm of S’ is: [The proposition that it is obligatory to φ] constitutes a legal norm of S Further downstream I shall explain in greater detail why I keep the dummy sortal in brackets. For now it suffices to say that as it stands the description “the proposition that it is obligatory to φ” is a dummy sortal term in the sense that it does not have much content of its own but instead it is sortally dependent on whichever turns out to be the proper sortal instance that is capable of constituting legal content. 257 My reason for favoring this ontologically inflationary semantic representation of ‘building law’ is that constitutionally related objects are strikingly different in their modal profiles in a way that is especially illuminating for legal taxonomy. Deferring the intricate details for another occasion, my thought is that linguistic representations of the relation between what is conventionally labeled as ‘sources of law’ (international treaties or customs, constitutional texts, statutory and administrative material, precedent, customary practices, judicial review) and legal content proper are more or less explicitly modalized. To be more precise, by ‘source of law’ I do not refer to the social facts about the obtaining or creation of these law-making instruments nor to normative or descriptive facts about their precise relevance with respect to the determination of legal content but directly to them as social artifacts or abstract objects. For instance, it is commonly said that whereas a set of actually existing legal norms is necessarily valid, its constituting legislative bill is contingently but not necessarily legally valid as there may be procedural or substantive legal grounds for depriving a bill from its capacity to constitute legal content. Moreover, a particular statutory text submitted for voting by a parliamentary body may survive textual or technical changes during its preparation or public deliberation in the sense that from the point of view of its individuation as a particular instance of a source of law it remains the same artifact. By contrast, even minor syntactic or semantic changes in the 258 formulation of legal norms may result in their repeal and their re- individuation as new norms.186 These sortal or modal distinctions do not necessitate by themselves substantive changes in the ontological landscape. As already noted from the very beginning of this exposition, it is a function of one’s metaontological presuppositions whether linguistic or mental representations of constitutively related objects are reflections of reality’s ontological structure. What matters in the current context is that the language of law is fraught with modal allusions of this sort and that this representational phenomenon is finely captured by the current semantic analysis. Whether or not entities that figures in the truth conditions of legal propositions can also figure as part of their truthmakers is a substantive question that cannot be settled at the level of semantic regimentation. My suggestion is that we understand legal claims as constitutive and not as generic claims. The semantic upshot is crucial as the truth-conditional analyses of generic statements and constitutive statements are radically different. My intuition is that the constitutive version depicts more accurately the contextual background of universal legal statements. What we are actually communicating by means of advancing universal legal claims is that somehow the propositional contents contributed by the sayings, doings and thoughts of some particular individuals or collectivities 186 Consider the analogy of a lump of clay and a statue. A lump of clay is accidentally Goliath-shaped as nothing prevents it from qualifying as an instance of the kind ‘lump of clay’ if it lacks the shape of Goliath. Conversely, a statue of Goliath cannot have its shape accidentally. 259 are capable of producing a sortally distinct content-bearing entity. To vindicate the title of this section, recipe claims are semantically constitutive in exactly the same sense; to borrow Mark Jago’s and Stephen Barker’s illustration, ‘[if] we tell you that the cardigan is made of one piece of thread, then we convey the information that one way of getting a cardigan is to take some thread and process it in a certain way. A single wool thread is part of at least one recipe for a cardigan.’187 To see the analogy with the lump of clay and a Statue of Goliath it is helpful to consider how the two entities can be thought of as sharing the same intrinsic non-sortal properties and yet radically depart in their possession of sortal and persistence or modal properties. In the same sense that a particular lump of clay has intrinsically the same shape as the statue of Goliath it constitutes but is sortally distinct—one is a lump of clay, the other is a statue—and persistence-wise distinct—the lump of clay does not have its shape essentially whereas the Statue of Goliath is essentially Goliath-shaped—, a propositional-content-bearing entity P can have the same constituents with those furnishing a legal norm with its content but at the same time it can differ with respect to its sortal and persistence or modal properties. C. The Semantic Value of the Dummy Sortal 187 See their ‘Monism and Material Constitution’, supra note 53, p. 190. 260 Up to this point I have been deliberately postponing an elucidation of a crucial component of my alternative semantic proposal. I apologize for the tortuous route of this semantic digression which I now bring to a close, but I hope that I can make amends by starting with an explanation of why I allowed perplexity to escalate. I will begin with a blunt statement of the problem; as it stands, the proposition ‘the proposition that it is obligatory to φ is a legal norm of S’ has no truth conditions. The reason is that the dummy sortal description the proposition that it is obligatory fails to denote a kind of object. The sortal description the proposition that falls within the same class of descriptions like ‘thing’, ‘physical object’, ‘non-human entity’, ‘felicific substance’. Dummy sortals lack the criteria of identity that individuate their instances. Even though they behave grammatically as count nouns they do not also behave logically as such as evidenced by the unintelligibility of questions pertaining to their enumeration (“exactly how many things made up the universe?”) or their persistence conditions (“is the substance that makes you feel happy still in your blood stream?”). The proper logical function of the dummy sortal the proposition that is that of a variable or placeholder that awaits to be occupied by a genuine sortal instance. To illustrate its logical behavior we could assume that the proposition that operates as a placeholder. Then a more formal regimentation of the sentence ‘the proposition that it is obligatory to φ is a legal norm of S’ will be something like: ‘_____ to φ is a legal norm of’. Until we inject a determinate sortal term the latter sentence is not truth- 261 evaluable. This is not an unwelcome consequence of stretching the logical regimentation of legal claims beyond plausibility. It is exactly the result this analysis invites us to anticipate. What makes it the right moment to evaluate this result is what has just preceded its emergence. In the previous section I have tried to validate the hypothesis that the semantic value of the copula in sentences of the form ‘the proposition that it is obligatory to φ is a legal norm of S’ is an instance of the relation of constitution. Granted that this hypothesis withstands scrutiny, I am in a better position to explain why coming up with a semantic analysis that renders legal claims non-truth-evaluable is the way to remain on the right track. The idea is that by presenting legal claims as instances of constitutive claims we transfer the locus of disagreement from the concept of law to the constituting “materials” of law. By ascribing to legality the semantic value of an abstract object (legal norm/part of legal content) assertions of legal content are logically reformulated as assertions about what constitutes instances of that abstract object. By modeling legal disagreement on the basis of this latter type of claim we avoid the awkward results we get by modeling legal disagreement as if it were about the instantiation of the property of being legal or illegal or about the obtaining of a relation of requirement featuring the LAW qua normative source. On the former occasion, disagreement about whether an act-type falls within the extension of the property being legal turned out to be only partly genuine as it resulted in the exclusion of a significant portion of the 262 spectrum of jurisprudential views from intelligible participation in the discussion. For instance, it became clear that if we decided to treat legality as a thick objectionable term, antipositivist interlocutors would be represented as not sharing the same concept of law with positivists for the reason that legality would be treated as a purely descriptive property marked by pragmatically conveyed normative implications. Conversely, by analyzing legality as a normative predicate modifier we were led to the exclusion of positivist interlocutors from genuinely disagreeing with antipositivists. On the latter occasion, disagreement about whether the LAW requires that φ could be regarded as an instance of genuine disagreement at the expense, however, of its being classified as noncanonical. Noncanonical disputes do not reflect a disagreement about what is being said but focus either on issues pertaining to what is being asserted or on the facts in virtue of which words or sentences acquire their meaning. In the case of disagreement about whether the LAW requires that φ it is the latter type of noncanonical dispute that is instantiated. As I noted in the relevant section, treating legality as a sortal entity does not by itself violate NEUTRALITY and thus it does not compromise the extent to which disagreement can be genuine. More precisely, I suggested that a de re and de dicto analysis of statements like ‘the LAW requires that φ’ are equally plausible such that on the former but not the latter reading the truth of ‘the LAW requires that φ’ depends on the truth of the normative point of view of the LAW. Thus, the 263 legal positivist will claim, whereas his antipositivist interlocutor will deny, that ‘the LAW requires’ takes wide scope over the normative point of view of the LAW. As it stands, this is indeed a genuine disagreement but it is not a theoretical dispute about why φ-ing is or is not legally required; it is rather a metasemantic dispute about whether it is φ-ing simpliciter or φ-ing from the normative point of view of the LAW that is true of “the LAW requires”. Given that the sortal description ‘the proposition that it is obligatory to’ is semantically empty, it only serves as placeholder for what can figure in the type of claims that would be actually proffered by a pair of hypothetical discussants. Fortunately, the only semantic constraint with regard to which kind of content-bearing term could replace ‘the proposition that is obligatory’ in actual assertions of legal content is that it be sortally and not singularly referential. What invites me to emphasize that the proper terms must be sortal and not singular is that otherwise we would be led to the counterintuitive conclusion that when we disagree about what constitutes a legal norm we disagree about whether it is this or that particular text (constitutional, statutory, executive, judicial or administrative) or a speech act instance performed by a particular person to which a legal norm owes its content. A reliable way of distinguishing individually referring from sortally referring terms is to ask whether a chosen term has further instances. As Lowe remarks, 264 ‘According to the definitions of individual and sort suggested above, what distinguishes the individual Dobbin from the species or sort horse is that Dobbin has no instances (except, quite possibly, himself ) whereas the horse does. That is, ‘horse’ divides its reference, but ‘Dobbin’ does not. It is indivisibility of reference rather than material indivisibility that, it seems clear, the notion of ‘individuality’ implies, when we employ it in speaking of ‘individual’ as opposed to ‘sortal’ terms. Dobbin is, of course, not ‘indivisible’ in the sense that he cannot be cut into pieces, merely in the sense that nothing (apart perhaps from Dobbin himself ) – such as any one of these pieces – qualifies as an instance of Dobbin. There is no plurality of different Dobbins, in the way that there are many different horses.’188 Focusing on the four jurisprudential theories I have chosen to juxtapose we can get as much as three candidate genuine sortal terms that can replace ‘the proposition that it is obligatory to’ in actual assertions of legal content. In this regard, I have deliberately omitted a candidate term that would fit Dworkin’s account of legal content for the reason that, as I have already explained, I intend to classify Dworkin as an error-theorist about the truth of legal constitutive claims. To make the resulting replacement more illustrative, I will venture to enumerate alternative formulations of the truth conditions of an actual legal assertion: (a) Razian genuine sortal: An authoritative directive to φ constitutes a legal norm 188 E.J. Lowe, More Kinds of Being, supra note 54, pp. 39-40. 265 (b) Greenbergian genuine sortal: The fact that it is obligatory to φ constitutes a legal obligation to φ (c) Shapirian genuine sortal: A rational requirement to φ constitutes a plan of S All three descriptions are sortally (and not individually) referential in the sense that they can be further instantiated. A general and abstract authoritative directive is instantiated by individual orders, a universal fact about the content of general obligations is instantiated by atomic facts pertaining to the particular obligations of concrete individuals and a general rational requirement can be likewise instantiated by individually addressed requirements. Taking stock of what has been said so far, it is worth noting that the type of legal claim that figures in actual jurisprudential disputes is theory- sensitive in a way that would exclude a non-legally-trained person from qualifying as a semantically competent participant without at least implicitly deferring to one of the sides figuring in the relevant dispute. This result should not go by unnoticed. In section I.5.1.B.2. I explained how the dependence of semantic competence on jurisprudential expertise is not a fatally restrictive consequence of the doctrinal character of legal language. Upon proper reflection it may turn out that there can be a layman-privileged description of law’s constitutive material that allows ordinary speakers to have a priori access to reference-fixing criteria for their use of legal 266 vocabulary but only a posteriori access to the words’ associated modal profile. I do not intend to rehearse my previous remarks but it suffices to say that, regardless of the possibility of vindicating a two-dimensionalist or a conceptual role semantic framework for the use of legal language, instances of full-fledged jurisprudential disagreement are such that not any kind of speaker can be meaningfully engaged. That being said, I believe that this is not a bullet a proponent of a unified semantics for law must bite; it is precisely what our theory should anticipate and explain. There is nothing wrong or counterintuitive in claiming that genuine legal disputes are just not open for anyone. This is a linguistic division of labor that a subject matter as intricate the determination of legal content necessitates. What appear to be instances of disagreement featuring legal assertions made by non-trained speakers are rather testimonial disagreements about what the law around here is rather than about what makes it the case what law around here is. A related worry about my expedient optimism is that it is founded on highly controversial premises. On the one hand it is not at all obvious whether the project of semantic two-dimensionalism is immune to a series of familiar objections aimed at internalist approaches to reference determination. On this issue I am eager to bite the bullet as I see no devastating implication that the eventual unavailability of a two-dimensional apparatus could have for the possibility of theoretical disagreement about 267 law. In the worst case it could turn out that it is much more difficult to semantically accommodate the possibility of ordinary speakers’ participating in genuine disagreement about the grounds of law. But this semantic constraint has not direct bearing on whether we should abandon the prospect of welcoming metaphysical controversy in our jurisprudential disputes. On the other hand, someone could argue that if there can be no a priori, expert-free access to some dimension of the meaning of law in its various syntactic manifestations, then we are not entitled to seek recourse to the model of semantic deference in order to account for the resulting rift between ordinary and expert assertors of legal content. There can be no deferential semantic mechanism without there being wide-spread trust that there is a dominant expert view that can boost the capacity of ordinary speakers to negotiate the world.189 Jules Coleman and Ori Simchen express their concern about the prospect of treating law as a deferential concept when they focus on what they call the ‘pedestal view’ about the metasemantics of law. According to this view, ‘in the same way that scientists uncover the nature of water, philosophers of law uncover the nature of law—just as the best theory of the nature of water determines the 189 Jules Coleman and Ori Simchen associate their rejection of the reliance of semantic competence with ‘law’ on jurisprudential expertise with a traditional understanding of semantic deference. They note that ‘a term will exhibit linguistic deference when there is widespread trust within the linguistic community that there is a received expert doctrine on the nature of the things to which the term refers that is thought to contribute to speakers’ capacity to negotiate the world’ (J. Coleman and O. Simchen, ‘Law’ in Legal Theory (2003) 9: 1-41, at 23). 268 content of “water,” the best theory of the nature of law determines the content of “law.” This approach expresses the idea that jurisprudence somehow figures in the semantics and metasemantics of “law”’.190 Their argument is basically that law cannot be a deferential concept because the lack of a received jurisprudential doctrine about the nature of law severely undermines their confidence that they will ever qualify as being semantically competent with ‘law’ by relying on one instead of another competing doctrine. D. Are Constitutive Disputes Merely Verbal? I see no point in trying to challenge a fairly established definition of what counts as a proper instance of semantic deference as opposed, say, to an instance of semantic hope that eventually a particular doctrinal interpretation will disprove all the rest. As it stands this position clearly prevents law from qualifying as a deferential concept. That being said, I see no reason why the fact that the semantics of law are sensitive to the findings of jurisprudential inquiry is an alarming indication that there is something deeply mistaken about our methodology. Even if our best rational reflection cannot deliver a reference-fixing description of legality to which every ordinary speaker is capable of accessing a priori, I cannot see how the rejection of law as a deferential concept on metasemantic grounds can 190 Ibid. p. 38. 269 decisively constrain our best understanding of the site of theoretical disagreement about the grounds of law and, consequently, our best understanding of the semantic modeling of this disagreement. The argument, as it stands, is based on the following syllogism: (a) The extension of ‘law’ is determined by recourse to legal theory (b) If (a), wide semantic competence with the doctrinal extension of law must be deferential (c) There is a pervasive dispute between alternative theories of law (d) If (c) law is not a deferential concept (e) Because of (d) and (b) the extension of law cannot be determined by recourse to legal theory I believe that the fallacy that plagues this syllogism lies in an unpronounced assumption that those who believe that the semantics of legal claims are theory-sensitive also believe that the content of their best theoretical verdict must figure into the semantic content of “law”. For instance, if by the lights of a particular theory law is essentially made of authoritative pronouncements, this latent assumption would predict that the notion of an authoritative pronouncement is at least part of what we mean when we use the word law. This, however, is a seriously mistaken conclusion. Whereas jurisprudential disagreement is clearly focused on scrutinizing verdicts like this one, the content of this verdict need not be encoded in our use of the word law. By modeling legal claims as claims about what constitutes the abstract object LEGAL NORM or PART OF 270 LEGAL CONTENT it is easier to predict how an instance of disagreement can indistinctly and thus genuinely engage all jurisprudential viewpoints without legitimizing the assumption that the semantic content that corresponds to what constitutes law is also part of the semantic content of law itself. The crucial distinction lies in what distinguishes the semantics of legal claims construed as constitutive claims from the semantics of the word ‘law’. Properly speaking, it is the former but not the latter semantics that is theory-sensitive in the sense that matters here. To see how this distinction can work I suggest we subject a claim of the form ‘an authoritative directive to φ constitutes a legal norm’ to a ‘mere verbalness’ test. For simplicity’s sake we may name the particular authoritative directive ‘Directive’. Stating the obvious, my choice of casting the example in Razian terms is completely random. Exactly the same experiment can be conducted by replacing the dummy sortal ‘the proposition that it is obligatory to’ with other referents like ‘the fact that it is obligatory to φ’ or ‘a rational requirement to φ’. That being said, suppose that we witness the following dialogue between Gonzo, a Razian positivist, and Froddo, a Greenbergian antipositivist: (a) Gonzo: Directive constitutes Legal Norm (b) Froddo: Directive does not constitute Legal Norm Instead of taking sides either with Gonzo or Froddo one may proceed to claim: 271 (c) The deflationist: Something is going really wrong with the debate This latter claim purports to describe the dispute between Gonzo and Froddo as merely verbal. To test this line of reasoning I shall employ Eli Hirsch’s necessity condition for verbalness according to which ‘a dispute over the truth of a sentence D is merely verbal if there are two undisputed sentences U1 and U2, one true and one false, such that one side holds that D is (a priori necessarily) equivalent to U1 and the other side holds that D is equivalent to U2’.191 To show how the verbalness test fails in the case of legal constitution I shall properly modify Karen Bennett’s incisive criticism of Hirsch’s deflationist strategy192. For the purpose of our modified example, let D be ‘Rock constitutes Goliath’. U1 could be something like ‘Legal Norm strongly supervenes on Directive’, whereas U2 could be something like ‘Legal Norm existentially depends on Directive’. Gonzo argues that D is true iff Legal Norm strongly supervenes on Directive and that because U1 is obviously true, D is true as well. By contrast, Froddo argues that D is true iff Legal Norm existentially depends on Directive and that because U2 is patently false D is false as well.193 191 E. Hirsch, ‘Physical-Object Ontology, Verbal Disputes, and Common Sense’ in Philosophy and Phenomenological Research (2005) 70 (1): 67-97, p. 83. 192 K. Bennett, ‘Composition, Colocation, and Metaontology’, David Chalmers, David Manley, and Ryan Wasserman (eds.), Metametaphysics: New Essays on the Foundations of Ontology, Oxford University Press, 2009,pp. 38-76, at 38-76. 193 The latter claim is indisputably false as the existence of Directive does not necessitate or ground the existence of Legal Norm. For instance, it is possible that a particular authoritative directive has been issued that is considered to be invalid according to the 272 Whereas U1 is a claim that Gonzo would eagerly take on board, U2 is presented as what Gonzo believes that Froddo, falsely, believes that D entails. A preliminary objection is that it is not entirely clear that we can safely attribute to Froddo the belief that the sentence ‘Directive constitutes Legal Norm’ entails that ‘Legal Norm existentially depends on Directive’. The problem, as Bennett remarks, is that ‘because [in disputes over composition and constitution] it is not clear that there is in either case an undisputed falsehood U2 to which the low-ontologist [Froddo] takes D to be equivalent, it is not clear that these disputes meet [Hirsch’s] sufficient condition (H). If they do not we have been given no reason to think that they are verbal disputes’.194 The relevant worry is that it will be always controversial how the conversational background of a dispute over constitution can furnish the indisputable falsehood that a low-ontologist like Froddo purports to attribute to a high-ontologist like Gonzo. Before proceeding to explain why the indisputable truth (U1) about Legal Norm’s supervenience on Directive fails to threaten the substantive character of the dispute between Gonzo and Froddo, it should be noted that as it stands it may reasonably cause confusion as the relation of supervenience is standardly taken to hold between families of properties and not objects. This is not a fatal restriction as one can specify the constitutional type of supervenience as a three-place relation. For instance, criteria set by the rule of recognition of a given legal system. In this case, the directive will exist even though it is invalid but there will be no legal norm coming into existence. 194 K. Bennett, ‘Composition, Colocation, and Metaontology’, supra note 61, p. 52. 273 Kathrin Koslicki provides a partial analysis of constitution in terms of strong supervenience as follows: ‘(C) Partial Analysis of Constitution: For any objects, x and y, and any kinds, K1 and K2, such that x is of kind K1 and y is of kind K2, y constitutes x only if x is constitutionally supervenient on y with respect to the family, A, of x’s and y’s S-properties.’195 Now, let us take a look at how the case of legal constitution might be fitted into this mold. We may assume that the family A of the properties of Legal Norm and Directive features intrinsic properties like ‘having a particular propositional content C’, extrinsic properties like ‘being part of legal system S’, modal properties like ‘being repealable’ and temporal properties like ‘being effective as of the 1st of June 2014’. According to Hirsch’s verbalness principle the disputed sentence ‘Directive constitutes Legal Norm’ must be a priori and necessarily equivalent to the sentence (U1) ‘Legal Norm is constitutionally supervenient on Directive with respect to the family A of Legal Norm’s and Directive’s intrinsic and extrinsic properties’. In the light of this equivalence principle Bennett poignantly objects that the application of Hirsch’s principle can be a sufficient condition on a dispute’s being merely verbal if and only if the same principle entails a further principle, namely, that: ‘If Legal Norm is constitutionally supervenient on Directive with respect to the family A of Legal Norm’s and Directive’s intrinsic and extrinsic 195 K. Koslicki, ‘Constitution and Similarity’ in Philosophical Studies (2004) 117: 327–364, at 345. 274 properties, then it is a priori, necessarily, and analytically true that Directive constitutes Legal Norm’ Bennett’s related concern is that there is no evidence whatsoever that the above conditional is analytic in Gonzo’s language. In the present example, the equivalence principle is clearly synthetic in the sense that whereas the relation of constitutional supervenience is obviously symmetric, the relation of legal constitution is asymmetric. Consequently, the sentence ‘Legal Norm is constitutionally supervenient on Directive with respect to the family A of Legal Norm’s and Directive’s intrinsic and extrinsic properties’ is at best a partial196 analysis of ‘Directive constitutes Legal Norm’. As it stands Gonzo’s assumption that Legal Norm is constitutionally supervenient on Directive is ontologically non-committal as nothing in the formulation of this claim suggests that the related objects in question must be numerically distinct. On the other hand, Gonzo’s main claim that ‘Directive constitutes Legal Norm’ is ontologically committing precisely in virtue of its asymmetric character. What Gonzo’s main claim clearly entails is that Directive is numerically distinct from Legal Norm. An analytic interpretation of the equivalence principle would amount, as Bennett remarks, ‘to saying that we can define things into existence. But surely an analytic claim cannot be 196 This precisely how Kathrin Koslicki understands the claim about constitutional supervenience. She notes that The relation of constitutional supervenience as defined in (CS) has a feature which it shares with other supervenience-principles and which was already brought up in discussion earlier: it is by itself, i.e., without the addition of further conditions, not an asymmetric principle. See her ‘Constitution and Similarity’, supra note 64, p. 347. 275 existence-entailing in this way; surely the existence of a new object cannot follow by meaning alone. Who knew ontological arguments were so easy?’197 CHAPTER IV Varieties of Theoretical Disagreement In the previous section I ventured a digression from the purely metaphysical aspect of theorizing about law which I labeled ‘semantic’. My motivation for presenting it as a digression rather than as an intermediate premise in arguing about the site and scope of jurisprudential disagreement is that its concluding results are not meant to serve as an alternative theory of the semantics of law but as a heuristic semantics of legal disagreement. This can be evidenced by the criteria upon which I have based my rejection of the property and sortal entity approach in assertions of legal content. Both approaches have been scrutinized by reference to whether they respect NEUTRALITY in the maximal degree possible. Whereas I do believe that an eventual theory of legal semantics must also include the criterion of jurisprudential neutrality among its premises, I chose not to press this point any further mainly because our present concern is about how to convince all major contributors of a broadly cognitivist persuasion to sit around the same table. The object of this negotiation is not what will eventually qualify 197 K. Bennett, ‘Composition, Colocation, and Metaontology’, supra note 61, p. 56. 276 as a correct semantic theory for law but whether we can refine our understanding of the mechanics of our disagreement by discovering points of convergence that do not correspond to the traditional coarse intersections between positivist and antipositivist theories. This has proven to be a painstaking task as it is far from obvious which privileged aspects of the meaning of legal utterances diverse philosophers of law are willing to retract from figuring into the semantics of a model language of legal disagreement. For the sake of preserving a minimally neutral platform of disagreement it occurred that both positivist and antipositivist legal philosophers might consider dispensing with an argumentative use of legality as a success term198, descriptive or normative. Irrespective of how exactly the determination of legal content depends on the satisfaction descriptive and/or normative criteria, it is unnecessary to inject their precise contribution into the semantic information conveyed by assertions of legal content. At the same time, it appeared less easy to disembarrass legal talk of any theory-committing reference to the origin of what furnishes legal content. This was evidenced by the fact that the final semantic regimentation delivered the dummy sortal the proposition that it is obligatory to lacked truth conditions. Given this restriction it turns out that actual, world-bound assertions of legal content 198 Success terms or words entail the truth of an embedded clause, or the achievement of some result. Many words describing our knowledge of things presuppose success or achievement. We can only know what is true, remember what happened, or perceive what is there. Other words have to be found for illusions of knowing, remembering, or perceiving, suggesting that success is a kind of default state. 277 must feature a genuine sortal instance (e.g. “an authoritative directive to”, “the fact that it is obligatory to”, “a rational requirement to”) as the determinate occupant for the argument place C in locutions of the form ‘C constitutes a legal norm’. In place of a summary of this semantic digression it is worth highlighting three points that are crucially relevant for what follows. Firstly, it is at least possible to regiment legal statements as statements of legal constitution. The semantic information encoded by such statements is similar to what is being conveyed by ordinary utterances involving the constitution of material or abstract artifacts. Secondly, my semantic proposal purports to offer a maximally inclusive semantic model for regimenting competing arguments about legal content. In other words, my proposal is meant to be utilized as a semantics for legal arguments without extending an invitation to apply this model to the case of ordinary, context-bound legal sentences. Thirdly, although my proposed semantics respects jurisprudential neutrality it is theory-sensitive in a qualified sense. It respects NEUTRALITY because it avoids thick interpretations of legality as a property or sortal entity that pack jurisprudentially committing information into its extension. At the same time, it acknowledges the theory-dependence of competing legal 278 claims by integrating into what is being said a modestly committed199 doctrinal reference to the sources of legal content. With this semantic apparatus in place I will try to show how my initial proposal about reconfiguring the site of jurisprudential disagreement can affect the orientation of our dispute about the nature of law. More specifically, I intend to show how the emerging variety of new types of disagreement, both first-order and second-order, supervenes on a taxonomical variety of theories of law that goes beyond the modalized conception of whether and how law is related to morality. As previously noted the guiding idea is that elevating the site of jurisprudential disagreement at the more abstract level of what grounds the truthmakers of legal propositions carries substantive implications for both the scope and content of our dispute. The structure of this section will be divided into three subsections focusing on the co-variation pattern between the discursive and taxonomical aspects of each of the three constituents of the reconfigured site of jurisprudential disagreement; by order of emergence these constituents are the possibility and nature of legal constitution, the 199 I highlight the modestly committing character of the terms that replace the dummy sortal ‘the proposition that it is obligatory to’ because nothing definitively rests on which genuine sortal instance will figure in a constitutive relation to legal content. For instance, one may adopt the view that legal norms are made out of authoritative directives and maintain at the same time that what enables an authoritative directive to constitute a legal norm is its being constitutionally capable of serving as a standard of rational conduct. Alternatively, on a positivist reading of the same semantic content it is a brute fact that an authoritative directive constitutes a legal norm in the sense that there are no explanatory intermediates between the obtaining of a legal norm and the issuance of an authoritative directive. 279 truthmakers of legal propositions and the grounding of facts about legal content. In each subsection I will contrastively develop the arguments that each one of our four exemplary jurisprudential theories can offer in response to the discursive challenges posed by the three thematic domains I have just identified. The alternative grouping of these four theories is the result of a functional association between different levels of disagreement and distinct taxonomical identities. By order of emergence the problem of legal constitution gives rise to a first-order, “recipe-type” disagreement about what legal norms are made of and a second-order disagreement about whether legal constitution is possible. The taxonomical output of answers to the first-order question will not overlap with the familiar division between positivist and antipositivist theories; instead it will deliver four possible individuations of the impact of law-determining practices resulting from each theory’s distinct way of cashing out the metaphysical or legal-content-determining impact of facts about the sayings, doings and thoughts of legal officials. With regard to the second-order question about whether there is such a thing as legal constitution the competing answers can be categorized into three theoretical pathways; a first informative surprise will be the common attribution of non-reductivism about the existence of legal norms/parts of legal content to Raz’s authority-based conception of legal norms and Greenberg’s moral impact theory of legal obligation. Shapiro’s planning theory of law will be identified as an instance of reductivism about the 280 possibility of legal constitution and Dworkin’s theory of law as integrity will be associated with an error-theoretic rejection of the possibility of preserving as numerically distinct law’s constituting material and legal content proper. The next problem that will serve as a platform of informative divisions is the relation of legal propositions to the world. Again the methodological pattern remains constant. A first-order type of disagreement revolves around the question of what makes legal propositions true. With the exception of Shapiro’s reductive understanding of legal facts as facts about the obtaining of plans the other three exemplary theories will deliver a univocal commitment to legal facts as the proper truthmakers of legal propositions. That being said, it is imperative to clarify that despite their common individuation as legal facts—as opposed to, say, facts about the existence of plans or facts about enforceability—Greenberg’s and Dworkin’s account of facts about the obtaining of legal obligations, rights or powers are radically different from Raz’s conception of legal facts as facts about the existence of legal norms. The former are essentially normative whereas the latter only contingently so.200 The second-order question pertaining to the relation of legal propositions to the world is about whether legal truth is 200 For Raz, like any other legal positivist, legal facts are properly speaking descriptive facts that are contingently reason-giving by virtue of normative facts. For instance, on Raz’s theory of legal authority the fact that a legal norm exist is a reason to act accordingly iff the Normal Justification Thesis applies in this particular case. That is to say that the fact about the existence of a legal norm provides a reason for action only in virtue of the normative fact that by taking this fact as reason-giving one is more likely to comply with what she has most reason to do independently of the creation of a legal norm. 281 ontologically committing. In this regard, all four theories will fall under the genus of legal propositionalism which, as explained above, maintains that logically regimented legal claims or whatever these claims are reducible to commit us to the existence of the entities they quantify over. The last problem will re-introduce a more refined version of the traditional distinction between legal positivism and legal antipositivism. The generic formulation of this problem is already familiar; it asks what grounds the truthmakers of legal propositions. By the same token, this question can admit of a first-order and second-order specification. On the one hand, we may ask what grounds the fact that a legal norm exists, what grounds the fact that a plan exists or what grounds the fact that a legal obligation obtains. The types of answer we should expect to receive are roughly co- extensive with the arguments that individuate each theory as positivist or antipositivist. For instance, on Raz’s theoretical account the fact that a legal norm exists is grounded in the fact that an authoritative directive has been issued that is validated by a particular system’s rule of recognition, whereas on Greenberg’s view, the fact that a legal obligation obtains is grounded in the fact that a moral obligation has been triggered in the legally proper way. On the other hand, we are also entitled to ask what grounds, or as Greenberg would say, what makes intelligible the fact that the obtaining of a legal obligation or the existence of a legal norm is grounded in the legally proper triggering of a moral obligation or the validation of an authoritative directive by a rule of recognition respectively. Greenberg is well-known for 282 his concerted effort to vindicate the requirement of making grounding explanations in law rationally intelligible, whereas a similar effort in the positivist field can be attributed to Shapiro’s conceptual argument about the relation between legal institutions and legal norms and its utility in making the grounding of facts about planning rationally intelligible. On the other hand, more traditional defenders of legal positivism and antipositivism like Joseph Raz and Ronald Dworkin respectively resist the postulation of explanatory facts that are not already part of the set of facts that grounds legal facts. IV.1. Legal Constitution and its Discontents Before proceeding with the presentation of the first discursively derived taxonomy I would like to reiterate that the semantic proposal I am defending here will not be used as an alternative theory of the semantics of law but as a heuristic semantics of legal claims as they figure in an argumentative context. By this I do not purport to exclude the possibility of generalizing the use of my proposed semantics but this is not a commitment anyone has to shoulder in order to engage in some meaningful disagreement about what grounds the truthmakers of legal propositions. To see why the latter does not necessitate the former I shall begin with explaining an episode of disagreement over whether ‘X constitutes a legal norm’. I shall deliberately keep X as a placeholder in order to highlight that 283 the ensuing disagreement can be meaningful irrespective of how one would prefer to specify X. A. First-order Disagreement over Legal Constitution The first type of disagreement over locutions of the form ‘X constitutes a legal norm’ is about what constitutes what. I would dare to say that it is akin to the mode of disagreement we can witness between two chefs arguing about the proper materials for making a recipe. This is not just a figurative analogy but the outcome of what constitutive claims generically amount to. Stephen Barker and Mark Jago associate the recipe-like type of information carried by constitutive claims with their asymmetry. To repeat their previously quoted remark, ‘Claims of material constitution carry information about recipes for making things. If we tell you that the cardigan is made of one piece of thread, then we convey the information that one way of getting a cardigan is to take some thread and process it in a certain way. A single wool thread is part of at least one recipe for a cardigan. This kind of making-recipe says: take some substance and add some structure to it… Recipes in general point to important explanatory relations in the world. We are interested in them (in part) because of in our interest in manipulating the world to get things we 284 want. Just as causal recipes point to causal relations, we think that constructive making-recipes point to material constitution. If so, then we have a reason for taking material constitution to be asymmetric.’201 By the same token, claims about the constitution of abstract artifacts like musical or literary works can be equally represented as carrying recipe-like information. Whereas it remains notoriously controversial whether some abstract artifacts (like musical works) can literally be created, constitutive talk is no less frequent in aesthetic discourse. For instance, on Jerrold Levinson’s modest account of musical Platonism a musical work is constituted by a sound-structure-as-indicated-by-x-at-y. This may be characterized by frugal metaphysicians as an ontologically inflationary approach but given the present framework of discussion it remains an open question whether constitutive claims admit of truthmakers that feature ontologically “offending” entities like indicated sound structures or musical works. That being said, Levinson’s approach is not an ad hoc amalgamation of his intuitions; this sortal description can be easily molded into a more general pattern like Kit Fine’s theory of qua objects202 such that, as Simon Evnine remarks, ‘Levinson’s indicated structures can be taken as qua 201 Stephen Barker and Mark Jago, ‘Monism and Material Constitution’, in Pacific Philosophical Quarterly (2014) 95 (2): 189-204, at 190. 202 See Kit Fine, ‘Acts, Events and Things’ in Werner Leinfellner, Eric Kraemer, and Jeffrey Schank (eds.) Sprache und Ontologie: Akten des Sechsten Internationalen Wittgenstein- Symposiums, Vienna: Hoelder-Pichler-Tempsky, 1982, pp. 97-105 for the theory of qua objects in general. See also his ‘The Problem of Non-Existents. I. Internalism’ in Topoi (1982) 1: 97 – 140 for its application to literary works and, as he notes in passing, to musical works as well. 285 objects that have sound structures for their bases and properties of the form indicated by x at t as their glosses. The works will inherit many properties of their bases including, of course, the property of sounding a certain way when realized.’203 I am not entirely convinced as to which kind of abstract artifact law resembles the most but for the sake of evading lofty innovations I could easily resort to Dworkin’s famous analogy between law and literary works. My invocation of this analogy has no ontological underpinning whatsoever nor does it imply my espousal of Dworkin’s account of constructive interpretation. The only reason I am dragging this analogy to the surface is illustration; the idea I intend to convey is that we are already familiar with analogies that implicate in more or less direct ways the relation of material or abstract constitution. Dworkin’s correlation between law and literature is only one of numerous other analogical arguments employed by legal philosophers in the service of their diverse argumentative ambitions. In the positivist literature related examples feature associations between the constitutive power of promissory utterances and the relation between official enactments and the obtaining of legal norms, or the affinity between legal rules and the constitutive rules of games. Natural law theorists have also contributed informative analogies mainly by way of likening the function of laws to the function of what Judith Jarvis Thomson calls ‘goodness-fixing’ kinds. For instance, it is customary in natural law theory 203 Simon Evnine, ‘Constitution and Qua Objects in the Ontology of Music’ in British Journal of Aesthetics (2009) 49 (3): 203-17, p. 205 286 prose to encounter comments on the constitutional capacity or incapacity of laws to count as reason-giving norms. Keeping these analogies in sight we may ask how we can identify an episode of constitutive disagreement about law. To facilitate the adjudication of this dispute let us assume again that Gonzo and Froddo are engaged in a first-order disagreement over legal constitution. A typical instance of this disagreement would take the form of the following exchange: Gonzo: X constitutes a legal norm (or a part of the content of the law) Froddo: X does not constitute a legal norm (or a part of the content of the law) At first approximation, there is no conclusive reason to dismiss this disagreement as an instance of a merely verbal dispute. As explained above (III.3.2.C.), constitutive disagreements are substantive disagreements to the extent that the participants therein do not take their claims to be analytically entailed by unpronounced premises. Moreover, I have kept the constituting object argument place empty with a view to exploring the taxonomical implications of engaging in this type of disagreement. On one interpretation Gonzo’s disagreement with Froddo is about what legal norms (or parts of legal content) are made of. They do not disagree about the existence of legal norms or the possibility of their being abstractly coincident with other entities. In its current formulation their disagreement is about the “materials’ that make law. Admittedly it is easy to confuse the 287 constituting entities that figure in claims of legal constitution with what is commonly known as the sources of law like constitutional and statutory texts, judicial rulings, administrative regulations and the like. But the object of this disagreement is considerably more refined than a heap of texts, utterances and other institutional activities. To see how the taxonomical impact of this type of disagreement can be spelt out, let us assume that Gonzo is a Razian exclusive positivist and Froddo a moral impact theorist. At various points in the course of this exposition I have seized the opportunity to disclose my intention of treating both Raz’s authority-based account of legal norms and Mark Greenberg’s moral impact theory of legal obligation as instances of non-reductive pluralism about legal constitution.204 The main idea is that both theories can be charitably read as associating the effect of institutional activity with the constitution of legal content. By effect I mean the metaphysical role of authoritative pronouncements or facts about the actions of legal institutions in determining the content of the law.205 Non-reductivist theorists share the 204 See pp. 105-6. 205 My use of the notion of constitutive effect is not synonymous with Greenberg’s understanding of moral impact. As Greenberg notes, ‘the Moral Impact Theory holds that the law is [emphasis added] the moral impact or effect of certain actions of legal institutions—i.e., the moral obligations that obtain in light of those actions’ (in The Moral Impact Theory of Law, p. 1301). Greenberg’s notion of moral impact or effect is explanatorily upstream of the constitutive effect of law-constituting ‘material’. On my favored interpretation the ‘is’ that connects legal content with moral impact is that of constitution rather than that of identity or instantiaton. Facts about the actions of legal institutions change the morally relevant circumstances thus effecting a change in what we are morally obligated to do (moral impact). The resulting obligations are not legal 288 belief that our ontological inventory should be capable of accommodating the existence of ‘legal things’ and that the ontological profile of these legal things is distinct from the ontological profile of their constituting materials. Given the reconstructive nature of this taxonomical endeavor I carry the burden of providing some textual grounds for my proposal to interpret these two starkly opposed theories of law as sharing a common metajurisprudential background. Beginning with Joseph Raz’s theory of legal norms it bears emphasizing that he makes no explicit reference to a relation of abstract constitution holding between authoritative directives and legal norms. His standard way of relating these two entities is by using the term ‘issue’ or ‘prescribe’.206 Consequently the connection that seems to obtain is not between authoritative directives and legal norms but between an authority qua creating entity and legal norms as the product of its creative activity. The word ‘issue’ is commonly understood as a success term such that if a pair of relata—e.g. an authority and a legal norm—falls within its extension, it follows by way of entailment that a legal norm exists. What I am about to obligations merely by virtue of the fact that they are the result of moral impact. Whereas all actions of legal institutions are morally impactful, it is only instances of moral impact that has been brought about in the legally proper way that also qualify as instances of ‘legal impact’, so to speak. In this sense my association of the notion of impact or effect with the relation of legal constitution regards this latter notion of legal impact rather than the explanatorily prior notion of moral impact. 206 ‘A norm is prescribed if it is set by an individual or a group as a norm to guide the behaviour of some other person or persons. A prescribed norm is one set by a speech-act intended to be taken by the norm subjects as an exclusionary reason for action.’ (J. Raz, Practical Reason and Norms, (with a new postscript), Oxford University Press, 1999, p. 82). 289 argue is that this depiction is very close to licensing a constitutive interpretation given some additional premises. The latter are to be found in Raz’s distinction between authoritative utterances and norms. To illuminate his point I shall quote in full a pivotal passage from Practical Reason and Norms where it clearly appears that whereas authoritative utterances are intimately related to the creation of legal norms they remain modally and sortally distinct. According to Raz: ‘Not all exclusionary reasons are norms. We have noted that all authoritative utterances are exclusionary reasons, and yet they are not all norms [emphasis added]. Let us suppose that being completely ignorant in the matter I always invest my money according to the advice of a friend who is an expert on the Stock Exchange. His advice is an exclusionary reason for me and I regard him as my authority. And yet he is not issuing norms when he gives me advice…all orders are, in a sense, exclusionary reasons. But they are not always norms. It seems that norms and other exclusionary reasons do not differ in any way which is relevant to practical reasoning. The difference is primarily ontological. We talk of norms as entities [emphasis added].’207 The above passage is a clear indication that Raz does not take the copular sentences of the form ‘an authoritative utterance is a legal norm’ as identity statements. Not only would the meaning of his description not be affected but perhaps it would become more accurate if we replaced ‘is’ in the 207 Ibid p.77-8. 290 previous sentence with ‘constitutes’. Much in the same sense that a piece of statue-shaped rock does not always constitute a statue—as it may have acquired this shape in virtue of a physical phenomenon—an authoritative directive or utterance need not always constitute a legal norm. In the case of law-making the question of whether an authoritative directive succeeds in constituting a legal norm is ultimately settled by recourse to the particular legal system’s rule or recognition or set of rules of recognition.208 Moreover, on Raz’s account the content of an authoritative directive and the content of a legal norm are identical thus validating the intuition that constitutively related objects are intrinsically similar. This is a direct implication of combining the Sources Thesis with his view of what determines the content of legal sources. According to the Sources Thesis, ‘[all] law is source-based...A law is source-based if its existence and content can be identified by reference to social facts alone, without resort to any evaluative argument’.209 It thereby follows that to establish the content of 208 Raz explicitly acknowledges the theoretical fecundity of Hart’s concept of a rule of recognition when he remarks that ‘[that] the rule of recognition sets up some criteria of validity is clear. There must be in every system some criteria of validity that, although legally binding, are not legally valid; hence they must be set in the rule of recognition’ (Joseph Raz, The Authority of Law: Essays on Law and Morality (Revised Edition), Oxford: Oxford University Press, 2012 (original publication year 1979), p. 95). Furthermore, he adds two important qualifications: first, rules of recognition may be incomplete such that more determinate criteria of legal validity must be established by legal norms validated by a rule of recognition, and second, a legal system may have more than one rule of recognition each pertaining to a different source of law (legislation, precedent and custom). See ibid, p. 95-6. 209 Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (Revised Edition), Oxford: Oxford University Press, 1994, p. 210, 211. For an alternative formulation 291 the law just is to establish the content of a source of law. In Raz’s own words, ‘[to] establish the content of the statute, all one need do is to establish that the enactment took place, and what it says. To do this one needs little more than knowledge of English (including technical legal English), and of the events which took place in Parliament on a few occasions’.210 On the other hand, Greenberg’s allusion to the possibility of legal constitution is evidenced by his remarks on the relation between moral obligation and legal obligation.211 Whereas he purports to illustrate their relation in normative rather than strictly metaphysical terms the point he tries to make has a clear constitutive flavor. Greenberg attempts to bridge the two concepts by postulating a hypothesis which he terms the ‘Bindingness Hypothesis’. According to this hypothesis ‘a legal system is supposed to operate by arranging matters in such a way as to reliably ensure that, for every legal obligation, there is an all things considered moral obligation with the same content —but not necessarily so that for every moral obligation, there is a corresponding legal obligation [emphasis added]…An intuitive way of see Raz, The Authority of Law, supra note 11, pp. 39 and 47. For a critical analysis of their difference see Fernando Atria, On Law and Legal Reasoning, Oxford: Hart Publishing, 2002, pp. 65-7. 210 Ethics in the Public Domain, supra note 12, p. 221. 211 In what follows I will adopt Greenberg’s metaphysical talk of legal obligations instead of the metaphysically neutral term ‘part of the content of the law’ which (alternatively with the atomistic term ‘legal norm’) figures in the logical regimentation of legal sentences. 292 putting the point is that the law is supposed to be binding, where that means genuinely binding all things considered—not just legally binding (which the law trivially is). Let’s call the relation between law and morality that the law is supposed to ensure—that there be for every legal obligation a moral obligation with the same content [emphasis added] —bindingness, and the hypothesis the bindingness hypothesis.’212 Greenberg’s gloss on the way in which determinate moral obligations are related to determinate legal obligations allows us to infer it is metaphysically possible that there exist simultaneously a moral obligation triggered by the actions of legal institutions and a legal obligation with which it shares the same content. What would ensure that the intimate relation between triggered moral obligations and legal obligations proper is constitutive is a positive answer to the question of whether the former can obtain without the latter also obtaining. That would confirm the constitutive role of the copula that Greenberg uses when he emphatically says that ‘[legal] institutions take actions to change our moral obligations by changing the relevant facts and circumstances…With important qualifications, the resulting moral obligations are legal obligations’.213 On this picture, the relation between legally triggered moral obligations and 212 M. Greenberg, ‘The Standard Picture and Its Discontents’, in L. Green and B. Leiter (eds.), Oxford Studies in Philosophy of Law, Volume. I, New York: Oxford University Press, 2011, p. 39-106, p. 85. 213 M. Greenberg, ‘The Moral Impact Theory of Law’ (2014) Yale Law Journal 123(5): 1288- 342, at 1294. 293 legal obligations is asymmetric in the sense that the existence of the former cannot depend on the existence of the latter. The constitutive asymmetry between these two entities can be safely affirmed by the way in which Greenberg proceeds to qualify their relation. He carefully distinguishes between legally proper and legally improper ways of triggering moral obligations such that only those that come about in the legally proper way are also legal obligations. My argument is that the italicized copula can only have the meaning of ‘constitutes’. Greenberg rejects the pure identity between legally triggered moral obligations and legal obligations when he clarifies that ‘legal obligations are not just any moral obligations that are created by the actions of legal institutions. We need to limit the relevant moral obligations to ones that come about in the appropriate way—what I call the legally proper way’.214Greenberg does not offer a systematic account of the legally proper way of triggering moral obligations but he adamantly supports the idea that moral obligations that are triggered in legally improper or, as he calls them, paradoxical ways fail to constitute legal obligations.215 In a very general way he remarks that ‘If legal institutional action, by making the moral situation worse, generates obligations to remedy, oppose, or otherwise mitigate the consequences of the action, such obligations to mitigate have not come about in the legally 214 Ibid, p. 1321. 215 One may recall the analogy with the statue and the piece of rock. Watching a rock being hit by a lightning is not a “statue-proper’ way of constituting a statue even if it comes to acquire a statue-like shape. 294 proper way. Call this general way of changing the moral profile paradoxical (because the resulting obligations run in the opposite direction from the standard case). Moral obligations that are produced in the paradoxical way are not legal obligations.’216 It thereby follows that Greenberg’s line of reasoning offers a clear indication that he would not at least object to a piecemeal reconstruction that replaces his copular references to the relation between properly triggered moral obligations and legal obligation with a constitutive predicate.217 Moral obligations that are properly triggered by the actions of legal institutions are capable of constituting legal obligations with the same content. After this necessary exegetical digression we may return to our initial example of an episode of legal disagreement featuring the use of the expression ‘X constitutes a legal norm’. We may now afford to convert this empty statement into to a substantive claim. The example will feature Gonzo as uttering the sentence ‘an authoritative directive to φ constitutes a legal norm’ and Froddo will be appear as denying Gonzo’s substantive 216 Ibid, p. 1322. 217 Greenberg’s reconstructed position could be modeled in the likeness of Lynne Rudder Baker’s relational account of the possibility of constituted objects. Baker remarks that ‘here is the reason that [Lumpl] and [Goliath] differ in their essential properties even though they are intrinsically just alike: There are relational properties that [Goliath] has essentially but that [Lumpl] does not have essentially.’ (L.R. Baker, Persons and Bodies: A Constitution View, New York: Cambridge University Press, 2000, p. 107). By modest analogy we could attribute to Greenberg the view that the relational property of making the moral situation better essentially applies to ‘legal obligation’ but not to ‘moral obligation’ because the latter can be the result of a deterioration of the moral situation. 295 claim. Depending on the context of this episode of disagreement, the target of Froddo’s denial may strike a course towards two distinct directions. On the one hand, Froddo may object that this particular directive is invalid either because it conflicts with another superior directive or because its source—for instance, the minutes of a ministerial meeting— is not a source of law in the contextually specified legal system. On the other hand, Froddo may direct his objection to the fact that although the particular source of the authoritative directive is among the recognized sources of law of their legal system, the metaphysical role of authoritative directives does not consist in their constituting legal norms. In other words, Froddo does not question the existence or validity of the particular authoritative directive but its aptness to assume the role of a legal-norm-constituting object. In this particular example, Froddo may endorse Greenberg’s approach according to which the constituting role is properly assumed by normative facts about the impact of authoritative directives on the moral profile. On the latter view, the fact that an authoritative directive exists is not directly implicated in the constitution of legal content but it may change the moral context in such a way that a new moral obligation obtains; it is the latter moral obligation that on Greenberg’s account constitutes a legal obligation with same content. As a result, the first-order version of a constitutive disagreement about law encompasses two possible questions: (i) whether a legal-content- constituting object O originates from a valid source of law (source question) 296 and (ii) whether O is capable of having the effect of constituting a legal norm that shares the same content (effect question). A crucial implication of this making-recipe type of disagreement is that meaningful participation is reserved only for non-reductive pluralists about legal constitution. That is to say that as it stands any exchange of the form ‘X constitutes a legal norm- No, X does not constitute a legal norm’ conversationally implies that both parties agree that in the context of the dispute there exist two co-incident abstract objects, one of which is a legal norm. The regimentation of this discourse creates a slot for those theories of law to which we can attribute a non-reductive pluralist view about legal constitution. Consequently, only two out of the four exemplary theories of law can figure in the first-order version of this dispute. On the one hand, on Joseph Raz’s authority-based account legal norms are directly constituted by authoritative directives in the sense that a directive which is validly issued by a legal authority constitutes a legal norm with whom it shares the same linguistic content. On the other hand, on Mark Greenberg’s moral impact theory of law, legal obligations are constituted by moral obligations whose obtaining is triggered in what Greenberg calls ‘the legally proper way’. Despite their radical divergence with regard to the nature of law’s constituting material, both theories converge in their espousal of the possibility of legal constitution. In other words, both theories agree that from an ontological point of view there exist both a constituting object (authoritative directive or moral obligation respectively) and a constituted 297 object (legal norm or legal obligation respectively) which under constitution-favorable circumstances are related in this particular way. B. Second-Order Disagreement over Legal Constitution The most robust implication of this layout is probably its exclusionary effect. Given how the discussion is presently decoded a planning positivist or an interpretivist cannot intelligibly participate in the current version of the dispute without rendering it merely verbal. On the one hand, if someone like Shapiro believes that legal norms are reducible to a class of institutionalized plans she cannot come across as meaningfully disagreeing with Gonzo if she utters ‘X does not constitute a legal norm’. The reason is that for him a sentence like ‘X constitutes a legal norm’ acquires meaning only if we accept that it is paraphrasable into a sentence of the form ‘X constitutes a plan’. On the other hand, a theorist like Dworkin believes that there is no constitutive moment at which what justifies a legal practice as a whole creates a legal obligation. For a Dworkinian what justifies the practice and what one is legally obligated to do are two aspects of the same coin each one describing a particular aspect of law-making. In this regard, for a Dworkinian theorist a sentence of the form ‘X constitutes a legal obligation’ is literally false (or metaphysical bogus as she may remark) as there is no matter of fact about the existence of two abstractly coincident entities. 298 This line of reasoning places a significant burden of justification. If this is the finishing line of my argument one may reasonably get the impression that a planning theorist or an interpretivist can never meaningfully disagree with a Razian positivist or a moral impact theorist about the sources of law or the effect that facts about these sources have on the determination of legal content. This is certainly not the case. Against this misunderstanding I would like to affirm the possibility of their disagreement by remarking that the suggested model of disagreement about legal constitution correctly predicts that a source or effect objection on the part of a planning theorist or an interpretivist cannot be voiced as a first-order denial. In both cases, their objections about what is made of what are being addressed to their opponents from a higher-level of abstraction. I shall begin with the case of an interpretivist objector as it displays the highest degree of recalcitrance to a unified semantics of legal disagreement. Its recalcitrance is evidenced by the interpretivist’s error- theoretic reaction to constitutive claims about law. The objection of literal falsehood is a legitimate choice that poses a serious challenge for those who are willing to make the platform of legal disagreement as inclusive as possible. Hopefully, this challenge can be met as soon as we allow that disagreement over legal constitution is versatile enough to switch levels of abstraction depending on who enters the debate. By the end of this section, I will also try to explain how a reductivist about legal norms like Shapiro can also participate in constitutive disputes about law. My argument will be 299 similar to the one employed vis-à-vis the interpretivist objector but it will be subject to considerably less strain for the simple reason that in essence Shapiro’s hypothetical objection is not targeted against the understanding of legal claims as constitutive claims but rather against their featuring legal norms instead of plans as their proper constituted object. Let us begin with the question of what happens when an interpretivist retorts that ‘X does not constitute a legal norm’. The idea I have in mind is that her denial is centered on the very possibility of drawing a numerical distinction between the materials of law and law proper. This second-order objection about the possibility of legal constitution has a dual content. On the one hand, it expresses an error-theoretic view about the truth of claims of legal constitution. It rejects these claims as literally false. For an interpretivist it is not just the case that talk of legal constitution can be paraphrased into a non-constitutive kind of talk; rather it is fails to report any truth whatsoever. Instead of providing a sentence that is synonymous with the ontologically offending ‘X constitutes a legal norm’ the interpretivist believes that Gonzo and Froddo do not ordinarily use constitutive claims to assert the propositions they literally express. In this regard she carries the burden of telling us what interlocutors like Gonzo and Froddo really assert in their ordinary use of claims about legal constitution. This error-theoretic stance does not amount to the attribution of systematic error to speakers like Gonzo and Froddo with regard to their capacity to grasp what is at stake in the relevant domain of discourse. What 300 it conveys instead is the idea that many of the sentences that are being used in this domain are systematically false. This qualification brings us to the second, more crucial aspect of the interpretivist’s objection to assertions of the form ‘X constitutes a legal norm’. In the immediately preceding paragraphs I endorsed the concern that by regimenting legal claims as claims about legal constitution we exclude too early positions like Dworkin’s or Shapiro’s from figuring in disputes about the sources of law or their effect. Now, I believe that I can appease this reasonable criticism by adding the qualification that the interpretivist’s denial of ‘X constitutes a legal norm’ also serves as an affirmation of the possibility of an alternative position about the individuation of the sources of law and their effect on the determination of legal content. This idea becomes plausible the moment we think that the vehicle for expressing this alternative position is what the interpretivist believes we really assert when we say that it is legally obligatory to φ. Granted that it is imprecise to exhaustively associate legal interpretivism with Dworkin’s particular theory of law as integrity, I will confine my analysis to Dworkin’s theory for the sake of theoretical economy. According to Dworkin aspects of past political practices qualify as contributing to the content of the law in virtue of their being instances of the set of principles embodied in a particular political community. On this picture, principles of political morality do not stand in a relation of grounding to the contributory aspects of legal practices, but in a relation of 301 instantiation much like laws of nature are thought to have actual events as their instances. By denying that the pre-interpretive, to use Dworkin’s jargon, material is identified independently of its contribution to the content of the law, the legal interpretivist argues that we cannot disagree about the sources of law independently of the principles of political morality which the content of the law instantiates. How can this position be adumbrated by what the interpretivist believes we really assert when we make a legal statement? The crucial evidence, I believe, lies in Dworkin’s generic understanding of statements of legal obligation as expressing propositions about which obligations instantiate the principles of political morality that are applicable in a given legal system. A primary indication of Dworkin’s generic understanding of legal propositions is provided by his consistent appeal to the notion of ‘figuring in’ or ‘following from’ an integrity-realizing scheme of principle. In Law’s Empire we read that ‘[according] to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice’.218 On this understanding, by uttering ‘X does not constitute a legal norm’ an interpretivist can meaningfully engage her opponents by inviting them to reconsider their inflationary understanding of the entities that are implicated in the generation of legal 218 Ronald Dworkin, Law’s Empire, Cambridge, MA: Belknap Press, 1986, p. 225. 302 content. Her claim is that ‘X constitutes a legal norm’ is not what we really assert when we say that ‘it is legally obligatory to φ’. There are two major implications following from this way of translating Dworkin’s positive claim. The first one is that legal content-contributing aspects and principles of morality have to be of the same kind if the latter are to be instantiated by the former. By its very essence the relation of instantiation holds between kinds and their instances or properties and their instances. As such their instances cannot be of a different kind vis-à- vis their generic sources but only a world-bound actual exemplification of a universal kind or property. The second implication is itself implied by the first one as the homogeneity between legal-content-contributing aspects and their generating principles seems to make the existence of legal facts themselves spurious. That is to say, if for some reason some aspects of law- practices come to qualify as instances of principles of political morality, there is no intermediate space left for facts about what legal obligations, rights or powers obtain to figure into this picture. It seems that somehow the contributory aspects of law-practices and legal obligations proper are ontologically indiscernible. I will refer to this implication as the Indiscernibility Thesis which I purport to unpack in a way that it can be understood as a formal, ontological regimentation of Dworkin’s familiar claim that interpreting the law-practices consists in assigning to them the content that best fits and justifies them. On the most charitable reading of Dworkin’s gloss on the structure of legal 303 interpretation there does not exist a strict division between a pre- interpretive and an interpretive stage of legal reasoning. As Nicos Stavropoulos remarks: ‘The interpretivist does not accept, nor does the fit-justification distinction properly understood entail, a distinction between the data and their reading that is prior to and independent of interpretation…No aspect of the practice can be taken as a non-interpretive given. Rather, they are both parts of the interpretive, thoroughly normative account [emphasis added].219 It is crucial to notice that for Dworkin these two aspects are theoretically indistinguishable despite their epistemological disassociation in ordinary descriptions of legal practice. He emphatically explains this misconception when he remarks that he intends this ‘distinction not as a phenomenological report but an analytic device to help understand the logic of interpretation…the two dimensions of fit and value represent different aspects of a single overall judgment of political morality’.220 With these caveats in place, it would not be exegetically far-fetched to reconstruct Dworkin’s hypothetical response to the dispute between Gonzo and Froddo as involving the claim that what they really assert or deny is the proposition that a legal obligation succeeds or fails to instantiate a determinate conception of the principle of integrity. Instantiation is crucially generic 219 Stavropoulos, Nicos, "Interpretivist Theories of Law", The Stanford Encyclopedia of Philosophy (Fall 2008 Edition), Edward N. Zalta (ed.), URL = 304 much in the same way that a particular person’s life achievements or diachronic behavior instantiate a particular ethical virtue. The idea that may emerge by following this route will be that the focal points of content-contributing practices, legal facts and principles of political morality form a potentially virtuous circle. To see how this might work we may ask what would be Dworkin’s reply to the question of what makes legal propositions construed as constitutive claims true. That is to say, we can ask what kind of fact is the truthmaker for a constitutive claim of the form the contribution of S constitutes a part of the content of the law of S. Featuring Dworkin in a reconstructed confrontation with a hypothetical question is definitely a serious detour from a more exegetical understanding of his argument. As a result I would be insincere if I neglected the immediate objection that I am attempting to decipher Dworkin’s thought by allowing it to be infiltrated by ideas that he never entertained. There is no doubt that Dworkin did not take any interest in providing a semantically meticulous analysis of legal statements mainly because he thought that this would be an unnecessary distraction from the evaluative orientation of legal discourse. My response to this legitimate concern is twofold: firstly, I do not intend to commit Dworkin to a constitutive account of the semantics of legal statements but to animate his hypothetical rejection of this view in a way that reveals his actual understanding of how law is made. In that sense, my invocation of this semantic alternative is contrastive and not indicative of 305 how Dworkin would presumably argue about the semantics of legal statements. Secondly, and most importantly, my purpose is to offer a reconstructive account of the interplay between law, practices and normative facts that does justice to Dworkin’s first-order argument about the relevance of law-practices by way of ascending at higher level of abstraction. To see how the previous semantic digression can unpack the first interpretive hypothesis about the metaphysical role of law-practices let’s see whether and how the familiar operative concepts of Dworkin’s theory can be used to respond to this hypothetical challenge. My calculated guess is that Dworkin would have a very informative response as to whether we should reject a constitutive understanding of legal discourse and that this same response would be an epitomy of his own unpronounced metaphysical commitments. It is the latter aspect of Dworkin’s response that I intend to marshal in support of the “strategy” I have attributed to him. Granted that for Dworkin there is no strict divide between the descriptive and normative aspects of legal philosophy221 it is reasonable to expect that he would reserve an error-theoretic response to the question of what makes the proposition that the fact that the contribution of S is the obligation to φ constitutes a part of the content of the law of S true. He would say that as it stands this proposition is literally false not because he does not believe in the reality of legal facts but because this constitutive way of representing 221 Given his unified account of value Dworkin would offer the same comment with regard to the other two branches of practical philosophy, namely moral and political philosophy. 306 the reality of law is false. His objection would simply be that the aspects of practices that contribute legal content are indiscernible from the normative content they contribute such that it is a plain fallacy to assume that our discourse is about two numerically distinct entities standing in a relation of abstract constitution. By rejecting the constitutive account of legal discourse Dworkin would be ipso facto classified as a monist with regard to the possibility of legal, so to speak, constitution. That is to say, he would most probably remark that as it stands the proposition that the contribution of S constitutes a part of the content of the law of S is literally an identity statement and nothing more. At first approximation postulating the identity of these two purported objects can raise the Moorean concern that it implies a collapse between the descriptive and the normative aspect of law-making. It would seem, the objection goes, that the interpreted content of the sayings, doings and thoughts of legal officials is already endowed with the normative status of legal obligation. Whereas this would not be a problematic conclusion in the case of a lump of clay and a statue (both just are material objects), it is undoubtedly an undesirable result for our understanding of Dworkin’s normative conception of legal discourse. Hopefully, there is a way to retain Dworkin’s classification as a monist about legal constitution without shouldering the undesirable complications of reducing the normative to the descriptive or vice versa. A helpful analogy comes from the discourse about the possibility of material constitution. On 307 Michael Burke’s dominant kind view222 it is both true that a lump of clay and a statue cannot be spatiotemporally coincident and that there is a sense in which they remain numerically distinct. In particular, Burke claims that an object can be a statue and a lump of clay if and only if it has the persistence conditions associated with the dominant sortal profile of the object. In Burke’s own words ‘an object’s dominant sortal is the sortal…whose satisfaction entails possession of the widest range of properties’.223 For instance, the sortal statue but not lump of clay entails possession of aesthetic properties in addition to microphysical properties. Prior to the creation of the statue there only existed a lump of clay since this was the available dominant sortal. Let us now call the lump of clay that exists before the creation of the statue Lump and the lump of clay that exists after the creation of the statue Lump*. Lump* is identical with the statue (call it Goliath) but not with Lump! On Burke’s view, by way of sculpting a lump of clay into a statue the ordinary lump of clay ceases to exist and is replaced by another object, namely, Goliath. Goliath is also Lump* but Lump* is numerically distinct from Lump because they have different persistence conditions. How could this analogy from the ontology of material objects illuminate Dworkin’s Indiscernibility Thesis? We could say that before the onset of our 222 M. Burke, ‘Preserving the Principle of One Object to a Place: A Novel Account of the Relations Among Objects, Sorts, Sortals, and Persistence Conditions,’ in Philosophy and Phenomenological Research (1994) 54 (3): 591–624. 223 Ibid. p. 610. 308 interpretive work the only thing that exists are ordinary descriptive facts about the sayings, doing and thoughts of some actual persons in a given community. At this stage even the institutional designation of these persons qua legal officials is not available. Let us call the set of these descriptive facts Activities. By the time we set out to subject a set of descriptive facts to legal interpretation, Activities ceases to exist as such and is replaced by Activities*. Now Activities* just is a part of the content of the law (for brevity Law) because Law is a dominant sortal in the sense that it entails possession of a wider range of properties. To name a few, Law but not Activities* is—on Dworkin’s view—enforceable, reason-giving and, most importantly, it instantiates a select set of principles of political morality, that is to say, it realizes the value of integrity. In other words, there is no point in trying to locate a constitutive continuum during which some descriptive facts stand in a relation of abstract constitution to some normative facts, namely, facts about what legal obligations, rights or powers obtain. The content-contributing aspects of the law-practices and the obtaining legal obligations are one and the same thing insofar as the former acquire the persistence conditions of the latter. This “modal absorption” by legal obligations is explained by the fact that the sortal legal obligation or Law is dominant vis-à-vis the sortal content-contributing practices or Actvities*. In the light of this analogy, how could Dworkin’s hypothetical monism about the possibility of legal constitution lend support to the idea that 309 interpretation occurs by way of a virtuous circle from judgments of fittingness to judgments of justification and vice versa? The answer is that it does so by eliminating the distinction between facts about what content law-practices contribute and legal facts proper in favor of the latter. By way of this elimination it deprives the objector of a course of attack that would accuse Dworkin of failing to provide a legal-content-independent account of what identifies law-practices as such. Since facts about content-contributing practices (Activities*) just are facts about legal content and since the sortal legal obligation is the dominant one, what actually instantiates principles of political morality is legal obligations. This metanormative explanation helps to make it more intelligible how Dworkin purported to present his strategy about how law is made normative all the way down. On the instantiation reading of his strategy, there is no point in trying to distinguish what Dworkin calls the dimension of fit from the dimension of justification precisely because the process by which law comes into existence is normative from beginning to end. Everything begins with the postulation of a single vision of political justice as it is amalgamated within the context of a particular political community. What follows is an interpretive circle that starts from a normatively privileged description of the practice qua content-contributing and ends with the determination of legal content qua normative fact. Only normatively privileged facts about the sayings and doings of actual people within a particular community at a particular time can trigger the 310 set of principles that actually embody the value of integrity within a given political community. As a result of this triggering effect the same set of principles is instantiated by contingent normative facts about what legal obligations, rights or powers obtain in a particular community at a particular time. In their turn, those legal facts obtain in virtue of the fact that they normatively explain ex post the occurrence of those practices that have qualified as being capable of triggering the political community’s generative principles. This could be a charitable depiction of the virtuous interpretive circle that Dworkin pointed towards by advancing the Indiscernibility Thesis. For Dworkin, to identify a practice as legal just is to assert that this practice and not another triggers the instantiation of principles of political morality by legal facts. Moreover, the latter facts justify the practices that qualified as triggers of integrity. This triggering-instantiation-justification circle is best explained I believe, by the reconstructive attribution to Dworkin of a Dominant Kind view. On a charitable reading of this alternative view, a sentence of the form ‘it is legally obligatory to φ in S’ is true iff the obligation to φ instantiates a principle of S. Before proceeding with the unpacking of this claim, I must confess that Dworkin’s writings do not provide conclusive evidence as to how exactly he would prefer to regiment the relation between legal obligations, the principle of integrity and the totality of legal practices. That being said, his prolific authorship is marked by a consistent reference to 311 how legal obligations and rights are such that they simultaneously justify past political decisions and follow from the principles of morality that justify an actual legal practice.224 On the one hand, legal obligations and rights qua best justifications of past political practice are those normative facts that ‘deploy some argument why law on that conception [of integrity] provides an adequate justification for coercion’.225 On the other hand, legal obligations and rights are themselves determinate instances of how an abstract principle of integrity is amalgamated in a particular political community. The major implication of attributing to Dworkin a generic—as opposed to constitutive—account of legal propositions is that in his own theoretical universe legal obligations and rights are not episodic instances of morally filtered or brute facts about the sayings and doings of legal officials but generic instances of a specified principle of integrity that both individuates these practices as legal (dimension of fit) and justifies their coercive effect (dimension of justification). This conception can explain why a Dworkinian objector can meaningfully intervene in the exchange between Gonzo and Froddo. All that we need to grant her access to this dispute is to agree that instead of reading her objection as a first-order comment about whether 224 In one of his various glosses on the principle of integrity Dworkin notes that ‘rights and responsibilities flow from past decisions and so count as legal, not just when they are explicit in these decisions but also when they follow from the principles of personal and political morality the explicit decision presuppose by way of justification’ (Law’s Empire, supra note 21, p. 96). 225 Ibid. p. 139. 312 this or that pattern of activity is a proper material for constituting legal content we shall interpret her objection as being targeted against the separation of questions of source (fit) from questions of their effect or impact (justification) on the content of the law. Consequently, the interpretivist’s reply that X does not constitute a legal norm is not given at the same level of abstraction with Froddo’s homophonic response. It acquires a concrete communicable meaning as a metajurisprudential and not jurisprudential or first-order negation of Gonzo’s statement. Its informational contribution roughly consists in the claim that the appeal to the relation of constitution misleadingly disassociates the constituting from the constituted object. For the interpretivist, the inappropriateness of talk about legal constitution is to be further explained by the fact that legal obligations do not piggyback on whatever the best theoretical account of a legal practice qualifies as being endowed with constitutive impact. Legal obligations and rights are ontologically inseparable from whatever qualifies as having a constitutive impact on the content of the law because both aspects are abstractly enshrined in a set of principles of political morality. The inseparability of these two components and their common instantiation of a principle of integrity is what make both Gonzo’s positive and Froddo’s negative claim literally false. Next comes the case of the planning theorist who wishes to intervene in Gonzo’s and Froddo’s brief exchange without giving the false impression 313 that she sides with Froddo when she also utters the sentence ‘X does not constitute a legal norm’. Again, as I am about to argue, the nature of her denial is metajurisprudential rather than first-order but the route to her qualifying as a peer participant to this dispute is rather different from the interpretivist’s path of error-theoretical denial. As I briefly remarked at the beginning of this section, the challenge posed by the planning theorist’s negation of Gonzo’s claim is easier to address. The reason is that a planning theorist has no compelling reason to reject the possibility of abstractly coincident objects. To the contrary, this scheme of explanation can lend additional support to the kind of solution planning theorists like Shapiro favor with regard to the circularity problem arising for those who welcome in their ontology both facts about the exercise of legal authority and facts about the existence of power-conferring norms. By reducing talk of legal norms to talk of subplans and master plans a planning theorist like Shapiro need not eliminate his reference to relations of constitution. Both talks remain constitutive but only the latter is explanatorily basic. Granted that my reparsing of legal claims as constitutive claims is reconstructive, I will confine my exegetical quest to collecting sufficient evidence for attributing to Shapiro a reductive view of legal norms. There are many places in Legality where it becomes evident that the connection between legal norms and plans is intimate. By way of providing some guidelines for his readers Shapiro notes that his ‘purpose here is not to draw an analogy between laws and plans but to flesh out an 314 implication. The existence conditions for law are the same as those for plans because the fundamental rules of legal systems are plans.’226 Whereas throughout his book Shapiro maintains the use of legality as a distinct property of norms he does not seem to intend to imbue its use with a strong ontological undertone. There is a considerable volume of textual evidence suggesting that Shapiro treats legality as the formal, higher-order property of having some lower-order properties whose possession by a planning organization or a plan is represented by the system’s officials as serving the aim of solving ‘those moral problems that cannot be solved, or solved as well, through alternative forms of social ordering’.227 Among those lower-order properties features attributes such as compulsoriness228, self- certification229, official character230 and institutionality.231 On the standard view of higher-order properties their instantiation is generated by means of 226 S. Shapiro, Legality, Cambridge MA: Harvard University Press, 2011, p. 119. 227 Ibid p. 225. 228 For Shapiro legal authority is compulsory in the sense that (like parental authority) ‘consent is not a necessary condition for the applicability of its requirements’ (ibid p. 212). 229 A planning organizations is self-certifying to the extent that it is capable of ‘[enforcing] its rules without first demonstrating to a superior (if one exists) that its rules are valid. A planning organization, therefore, will be self-certifying whenever it is supreme or enjoys a general presumption of validity from all superior planning organizations’ (ibid p. 221). 230 ‘It is an essential feature of an office, therefore, that holders of power are “fungible,” namely, that the rights and responsibilities that attend the office do not depend on the identity of those who inhabit the office. If X and Y are both eligible to occupy office O, then X and Y will have the same rights and responsibilities when they occupy O’ (ibid p. 209). 231‘ [The] normativity of law is “institutional” in nature, which is to say that the legal relations may obtain between people independent of the particular intentions of those people’ (ibid, p. 210) 315 quantifying over some set B of lower-order properties plus a condition on what counts as membership of B.232 We can further specify this general account to fit Shapiro’s implicit endorsement of it as follows: Being legal just is the property of having some other properties P in B such that R(P), where R specifies a condition on members of B which is satisfied just by those properties in B that allow their bearers to be represented as serving a moral aim233 This formal analysis can be charitably read as a reduction plan on Shapiro’s part.234 Shapiro’s account of legality is reductive in the sense that it does not appeal to the property of legality in explaining what law is. By sharp contrast, law can be understood in terms of a set of more basic properties borne by a class of planning organizations or plans that allow the 232 Jaegwon Kim, Mind in a Physical World, Cambridge, Mass.: MIT Press, 1998, pp. 19–20. 233 This definitional scheme is extensively used in ‘buck-passing accounts’ of evaluative and deontic properties. The term buck-passing has been initially adopted by Thomas Scanlon within the context of his reductionist account of value in terms of reasons (see Thomas Scanlon, What We Owe to Each Other, Cambridge, MA: Harvard University Press, 1998, pp. 95-98). The overall strategy of demystifying value continues a long tradition codified under the name ‘fitting-attitude analysis of value’. For a comprehensive presentation of the fitting-attitude theorizing about value see Wlodek Rabinowicz and Toni Rønnow- Rasmussen, ‘The Strike of the Demon: On Fitting Pro-attitudes and Value’ in Ethics (2004) 114 (3): 391-423. In the present context I have adapted Pekka Väyrynen’s qualified restatements of Scanlon’s traditional definition of buck-passing (see his ‘Resisting the Buck-Passing Account of Value’ in R. Shafer-Landau (ed.), Oxford Studies in Metaethics, Volume 1, Oxford: Oxford University Press, 2006, pp. 295-324, p. 300). 234 Buck-passing analyses of properties are standardly treated as reductive. See Ulrike Heuer, ‘Explaining Reasons: Where Does This Buck Stop?’ in Journal of Ethics & Social Philosophy, (2006) 1(3): 1-25. 316 representation of these organizations and plans as serving a moral aim.235 On this picture the property of legality does not by itself enable the representation of a planning activity as serving a moral purpose but merely points to the existence of other properties that do so. In the light of this understanding Shapiro’s remark that ‘legal activity is the shared activity of social planning and that laws are just [emphasis added] plans, or planlike norms’236 can be plausibly invoked as a summary of a reductive project. How can this reading of Shapiro’s theory of law fit into the discursive mold defended here? A crucial prerequisite for ensuring that this adaptation is informative and charitably reconstructive of Shapiro’s argument is to verify whether his account leaves space for abstract coincidence. In this regard I believe that the most telling piece of evidence lies in Shapiro’s treatment of what he describes as the ‘Chicken-Egg Problem’. His main concern is that there is a lurking circularity in the relation between the concepts of power or authority and the concept of a norm that can threaten the very possibility of legal authority. To illustrate his argument he presents this puzzle as a pair of inconsistent principles: 235 Shapiro notes that “[t]he law possesses the aim that it does because high-ranking officials represent [emphasis added] the practice as having a moral aim or aims.” (Legality, supra note 29, p. 216-7). In a different context, David Plunkett remarks that on pain of letting the planning theory of law collapse into a theory of moral planning Shapiro must be committed to the view that the relation between legal officials and the activities of legal planning is representational in the sense that the former represent the latter as serving a moral purpose. Cf. David Plunkett, ‘Legal Positivism and the Moral Aim Thesis’ in Oxford Journal of Legal Studies (2013) 33 (3): 563-605. 236 Legality, supra note 29, p. 194. 317 Egg: Some body has power to create legal norms only if an existing norm confers that power. Chicken: A norm conferring power to create legal norms exists only if somebody with power to do so created it. On the one hand, by the Egg Principle if A1 has power to create a set of legal norms a norm must exist which confers that power on A1. On the other hand, the Chicken Principles dictates that somebody endowed with power to create this power-conferring norm actually created them. The puzzle arises as soon as we ask who created the power-conferring norm that confers power on A1. As Shapiro remarks, ‘[the] answer cannot be “A1” because he did not have the power to create any norms until n1 existed. In other words, it would be viciously circular to argue that A1 granted himself legal power, because n1 [the power-conferring norm] had to exist before A1 could have created it.’237 If we postulate the existence of another authority A2 to explain the antecedent validity of the power-conferring norm circularity is inevitable because by virtue of this pair of principle that authority must also derive its authority from another source or body and so on ad infinitum. Shapiro’s solution to this puzzle is strongly indicative of a constitutive understanding of legal norms qua plans. Any possible solution must involve the rejection of either one of the two aforementioned principles. We must either reject the Egg Principle by postulating the existence of a body whose 237 Ibid, p. 40. 318 power does not derive from some norm or reject the Chicken Principle by locating a norm that confers powers to create legal norms but which is not itself created by someone with a relevant power. Shapiro’s solution features the rejection of the Chicken Principle in a way that strongly suggests that legal norms qua plans are constituted by norms that are not themselves created by anyone else. Below I quote the whole passage that encapsulates this idea: ‘[The] Planning Theory is able to secure the existence of fundamental legal rules without generating vicious circles or infinite regresses. Legal officials have the power to adopt the shared plan that sets out these fundamental rules by virtue of the norms of instrumental rationality. Since these norms that confer the rational power to plan are not themselves plans, they have not been created by any other authority. They exist simply in virtue of being rationally valid principles [emphasis added].’238 This remark clearly points to the existence of two kinds of norms, those of instrumental rationality and legal norms qua plans, which are crucially different with regard to their modal profiles much in the same way that abstract objects like an indicated sound structure and a musical work have different persistence conditions. Norms of rationality exist necessarily in virtue of their status as rational principles, whereas legal norms qua plans exist contingently in virtue of their being created by planning officials 238 Ibid, p. 181. 319 vested with the authority to plan for others. The final step is to see whether these sortally distinct norms can be constitutively related. Whereas Shapiro does not make any explicit move towards this direction, there is nothing in principle that should dissuade us from supplementing his argument in this way. The relation of constitution is such that it crucially respects the modal dissimilarity of coincident objects and purports to put an end to the circularity of creation by virtue of the fact that constituted objects are asymmetrically dependent on their constituting counterparts. The pivotal question is what can be the constituting material of legal norms qua plans. It certainly cannot be the set of abstract norms of instrumental rationality as their content is not exclusively specifiable in terms of the far more determinate content of legal norms. But this is not where our quest is doomed to end. Norms of instrumental rationality like the means-ends principle are regularly instantiated by local, world-bound rational requirements that specify what type of behavioral response is rational in a given context. These requirements typically take wide scope over the conditions of their application such that to say that one ought to intend to pursue the means Y that are conducive to the realization of her intention to X is to say that one is rationally required to [intend to Y, if X]. Crucially, this wide-scope formulation allows more than one valid responses such that one can be said to satisfy this rational requirement either if she pursues the necessary means Y or if she revises her intention to X. 320 In the case of law, local rational requirements of the relevant sort can be generated whenever the officials of a legal system adopt a subplan that is authorized by the jointly adopted master plan of their system. On this picture what comes first is the acquisition of an adoptive attitude on the part of legal officials towards the fundamental rules of a legal system figuring in what Shapiro describes as the Master Plan of that system. The master plan of a legal system is an institutionalized shared plan that includes among others ‘new provisions that specify the formal conditions for the exercise of planning power’.239 In other words the master plan authorizes legal officials with the proto-authority to plan for others and moreover it instructs them how to exercise this authority. According to Shapiro its purpose is ‘to guide, organize, and monitor the shared activity of legal officials. It seeks to overcome the enormously complex, contentious, and arbitrary problems associated with arranging a system of social planning’.240 This is the first episode in a chain of infinitely ensuing episodes of what Shapiro calls the ‘inner rationality of law’. The initial adoption of this master plan triggers the obtaining of a series of more specific rational requirements committing legal officials ‘to filling out the plan, to ensuring consistency with one’s beliefs, subplans241, and other plans, and to not 239 Ibid, p. 168. 240 Ibid, p.177-78. 241 Subplans carry the bulk of regulative work associated with legal norms. Their relation to the more fundamental plans of a legal system is instrumental. As Shapiro explains, ‘[these] plans are clearly related to one another. Buying food at the supermarket is a means to 321 reconsidering it absent a compelling reason for doing so.’242 These more specific rational requirements are crucially involved in the ordinary law- making process as they explicitly instruct legal officials to adopt the subplans that best realize the master plan or other more general adopted subplans of the system. Everything that follows from the proto-planning activity of legal officials is also a plan.243 What emerges from taking this avenue of legal planning is a standard pattern of constitution of legal norms qua plans by local rational requirements. This pattern can be represented as follows: A local rational requirement to φ constitutes a legal plan to φ A local rational requirement to φ obtains iff a legal official or a group of legal officials (i) accept(s) a shared master plan (ii) adopt(s) a subplan that others244 φ and (iii) believe(s) that the subplan that others φ is serves to realize the master plan. In Shapiro’s terms an adoptive attitude towards a plan is not the same with intention. To illustrate the contrast between the two attitudes he remarks that ‘[in] the case of individual planning, the process [of norm creation] is the psychological activity of intending. In cooking dinner at home to night. When one plan specifies a means for accomplishing, or a way of realizing, the end fixed by another plan, we will say that it is a “subplan” of the second’, ibid. p. 121. 242 Legality, supra note 29, p. 183. 243 ‘If legal activity is the activity of planning, then it follows that all norms generated by this activity are plans.’ (Legality, supra note 29, p. 225). 244 By ‘others’ I do not intend to exclude legal officials themselves from the applicability of a legal plan. The latter are also part of the others but this time not in virtue of their capacity as legal officials but as members of a legal community. 322 institutional contexts, however…a plan may be created even though the one who adopted it did not intend to create a norm. As long as the institutionally prescribed procedure is followed, he will be acting in accordance with a process that is supposed to create norms and will therefore be capable of adopting a plan’.245 What triggers the constitutive impact of an obtaining local rational requirement that others φ is that legal officials exercise their planning authority in accordance with the procedures set out in the master plan of their legal system. Given the institutionalized structure of a legal system they need not accept the end or purpose to which this particular legal plan is conducive. It is sufficient for a local rational requirement to constitute a legal plan is that they exercise their planning authority according to the shared master plan’s formal provisions. Returning to the case of the planning theorist who overhears the dispute between Gonzo and Froddo we are in a better position to understand the nature of her metajurisprudential negation of Gonzo’s claim that ‘X constitutes a legal norm’. By sharp contrast with the interpretivist objector, she is not opposed to the very possibility of constitution but aims her target at the ontological profile of the constituted object. Her denial of ‘X constitutes a legal norm’ is about the ontological superfluity of legal norms. What she invites Gonzo and Froddo to consider is the possibility of paraphrasing their talk of legal norms into talk of plans. Only in virtue of 245 Legality, supra note 29, p. 128. 323 this necessary reduction can the constitutive claim of the form ‘X constitutes a legal norm’ acquire truth conditions. From this new vantage point the planning theorist can meaningfully disagree with Gonzo and Froddo about whether authoritative directives or facts about moral impact can have a constitutive effect on the content of the law. For the planning theorist neither authoritative pronouncements nor the impact of actions of legal institutions on the moral profile can have the effect of constituting legal norms qua plans. On her view this task is to be carried out by facts about the obtaining of rational requirements. By sharp contrast with Greenberg’s account of properly triggered moral obligations, rational requirements are triggered by facts about the adoption, revision or rejection of various (sub)plans rather than by facts about how the actions of legal institutions change the moral profile. Moreover, a planning theorist can voice her disagreement about whether a particular form of activity originates in one of the recognized sources of law of a given legal system. For instance she may argue that a particular action of a legal official or legal institution fails to trigger a new rational requirement because the master plan of the legal system does not recognize it as a proper way of changing the content of other subplans. IV.2. Objectionable Legal Ontological Commitments 324 The next domain that may host a second round of first-order and second- order types of legal disagreement pertains to the relation between veridical representations of legal content and the world. On the very onset of this exposition I tried to draw our attention to the cursory treatment by the current literature of the truthmakers of legal propositions with a view to raising our alertness of their pivotal role in defining our metaontological commitments about law. In this section I will try to substantiate this concern by showing how declining to skip the step that connects legal propositions to the grounds of law can broaden the spectrum of legal disagreement at two different levels of abstraction. Unfortunately there is little if any textual evidence that contemporary contributors to the jurisprudential discourse are inclined to offer more fine-grained descriptions of legal facts beyond the obvious claim that legal facts are facts about legal content. My aim is to show that this is a necessary step towards developing a theory about the grounds of law. At the first level the relation of legal truth to the world may spawn an informative division of opinion with regard to what kind of entities legal philosophers should be ontologically committed to. These will be the entities that figure in the facts that a theory takes to be the truthmakers of legal propositions. Behind the effacing label of legal facts there can figure remarkably different objects of ontological commitment. With regard to the linguistic representation of legal content legal philosophers of competing convictions utilize semantic conventions or models that can help them 325 accommodate the use of concepts that in principle seem to be in conflict with their metaphysical attachments. For instance, as we previously observed, positivists like Shapiro or Raz do use normative concepts like ‘obligation’ or deontic modals in their respective theories of legal content. What licenses their use is not their ultimate commitment to normative determinants of legal content but the elusive pathways that semantics or pragmatics may offer in order to make sense of episodes of linguistic usage that on some particular theories cannot withstand further metaphysical scrutiny. As soon as our disagreement migrates from the level of representations of legal content to the level of what in the world makes these representations true it becomes imperative to realize that our common vocabulary will be drastically downsized. This is not a worrisome result but a natural consequence of letting our talk of legal content be succeeded by the talk of legal truthmakers. The latter talk takes place at the stage of jurisprudential discourse where our views of ontological commitment about law become visible. As a result it is inevitable that our use of the same concepts cannot remain as ontologically innocent as before. For instance, both Shapiro’s semantic account and Raz’s pragmatic account of the use of normative language in law cannot extend their applicability to the question of what makes legal propositions true. At this level the scope of their vocabulary is restricted to notions that are consonant with their descriptive accounts of legal truth. 326 Whereas on the traditional conception of legal disagreement it is the grounds of legal facts rather than legal facts themselves that gain our attention, this alternative model of legal disagreement allows controversy to erupt even with regard to the ontologically committing constituents of legal facts. On this alternative method any appeal to a generic notion of legal facts is metaphysically improper precisely because the symptoms of theoretical disagreement about law are already evidenced by the different avenues of ontological commitment that different theories of law suggest by their appeal to what makes legal propositions true. From the point of view of ontological commitment Raz’s conception of legal truthmakers as facts about the existence of legal norms and Shapiro’s competing account of facts about the existence of plans are in direct disagreement. Despite their convergence in the advocation of exclusive legal positivism the ontological underpinnings of their theories are remarkably disparate. Shapiro is a reductivist about legal norms believing that ontological parsimony dictates the elimination of talk of legal norms from our ontological vocabulary and its replacement by the explanatorily wider notion of a plan or subplan. The same contrast can be witnessed in comparing Dworkin’s account of legal facts to Greenberg’s account. Whereas both cherish the antipositivist legacy of earlier natural law theories, their ontological commitments are not on the same par. On the one hand Greenberg’s non-reductivism about legal constitution leads him to a whole-hearted espousal of normative facts about the obtaining of legal obligations, rights and powers as the truthmakers of 327 legal propositions. For Greenberg the sum total of the legal content of a particular system consists in the totality of legal obligations, rights and powers currently obtaining within a given system. On the other hand Dworkin’s error-theoretic rejection of legal constitution is perhaps the most challenging position with regard to legal truthmaking. In the previous section I suggested that Dworkin’s rejection of the possibility of legal constitution must be accompanied by an alternative account of what we really assert when we say that it is legally obligatory to φ. Drawing upon Dworkin’s recurring reference to how propositions of law are supposed to follow from practice-embedded principles of political morality246 I proposed 246 There is a cryptic moment in Dworkin’s deployment of his argument about what composes the content of the law. At some point Dworkin seems to countenance possibility of also including what instantiates principles of political morality into the content of the law. Greenberg notices this ambiguity when he observes that ‘Dworkin sometimes formulates his theory to include in the content of the law not just the principles but also propositions that follow from them. He does not explicate the relevant notion of “following from,” but presumably the idea is that the principles imply more specific propositions. For example, the principle that no one can benefit from his or her own wrong implies the proposition that one who murders a testator cannot inherit under the will’ (‘The Moral Impact Theory of Law’, supra note 16, p.1299-300). I believe that this ambiguity can be dispelled if we understand Dworkin’s propositions of law as generic propositions about the instantiation of principles of political morality. If this interpretation merits our consideration, the type of proposition that becomes eligible for truthmaking is a proposition about the obtaining of the relation of instantiation. On pain of infinite regress this relation is standardly understood as an internal relation such that predications of instantiation are made true by facts about the existence or the intrinsic properties of either one or both relata. In the present case the proposition that a determinate obligation instantiates a principle is made true by the fact the principle obtains in a given context by itself rather than by a combination of the contextually determined obligation and the principle. Given that the content of the law is composed of the set of truthmakers of legal propositions we can safely assume that Dworkin’s committed view features only principles 328 the following truth condition: [it is legally obligatory to φ] is true iff a practice-consistent principle P requires that ψ and φ-ing is a way of ψ-ing. Consequently, the proposition expressed by a sentence of the form ‘it is legally obligatory to φ’ is a generic content of the form ‘the obligation to φ instantiates a principle of legal system S’. It thereby follows that by the lights of a legal propositionalist the truthmaker of the latter proposition must reflect what figures in the truth condition of the sentence expressing it such that the proposition that φ-ing instantiates a principle P of legal system S is made true by the fact that P. This is an interesting upshot as it illustrates a qualitative difference in Greenberg’s and Dwokin’s conception of what ontological commitments the content of the law of a legal system carries with it. The starting point is the fairly obvious thought that the content of the law consists of the totality of the truthmakers of legal propositions which in their turn feature the entities a theory of legal content is ontologically committed to. Provided that on Greenberg’s moral impact theory of law the truthmakers of legal propositions are facts about the obtaining of legal obligations, rights and powers, the total sum of legal content just is the set of normative facts about which legal obligations, rights and powers obtain in a given system. Consequently, a moral impact theorist is ontologically committed to things like legal obligations, rights and powers. By sharp contrast, on the Dworkinian account of legal truth propositions of law are made true by facts about which principles of political morality are operative in a particular but not their instantiations as parts of the content of the law. 329 legal system. It thereby follows that for Dworkin the total sum of legal content just is the total sum of practice-embedded general principles of political morality rather than what instantiates or specifies these principles in a particular context.247 This picture portrays an interpretivist as being ontologically committed to the existence of principles of political morality.248 At a more abstract level our way of accounting for the relation of legal truth to the world is indicative of our way of accounting for what dictates 247 Greenberg acknowledges this crucial difference when he notes that ‘[the] Moral Impact Theory, like Dworkin’s theory and unlike the Standard Picture, holds that the relation between legal practices and the law is a moral one. But, unlike Dworkin’s theory, the Moral Impact Theory holds that the law is the moral impact or effectof certain actions of legal institutions—i.e., the moral obligations that obtain in light of those actions—rather than the set of principles that best justify them. To use a spatial metaphor, on the Moral Impact Theory (as on the Standard Picture), the law is downstream of the legal practices; on Dworkin’s theory, by contrast, the law is upstream of the legal practices’ (in ‘The Moral Impact Theory of Law’, supra note 16, p. 1301). 248 Whereas Greenberg tends to affirm Dworkin’s ontological commitment to general principles he ponders about whether Dworkin’s incipient shift in Justice for Hedgehogs marks a clear departure from his robust commitments in Law’s Empire. He remarks that ‘[near] the end of Justice for Hedgehogs, however, Dworkin briefly suggests that he now holds a very different view…The discussion is highly compressed, but one reading is that Dworkin’s new position is that the content of the law is that part of the moral profile that is created by the actions of legal institutions and that the courts are morally obligated to enforce’ (‘The Moral Impact Theory of Law’, supra note 16, p. 1300). If this interpretation is correct it follows that the truthmaker of a proposition of the form ‘it is legally obligatory to φ in S’ is made true by the fact that the obligation to φ is enforceable in S. Consequently, the content of the law will consist of facts about enforceability which is more or less the view I will be defending in the last section of this chapter. This is not the place to evaluate Dworkin’s emerging shift of opinion mainly because the textual evidence is very limited to license any direct attribution of such an important change in Dworkin’s theory of law. At any rate, if this view could be confirmed by further evidence, it would definitely affect other areas of Dworkin’s though including his conception of how legal practices are individuated. 330 our ontological commitments about law. This is precisely the level at which the dispute between legal propositionalists and truthmaker theorists becomes more vivid. Bearing in mind the commonality of presuming a pictorial relation between truth conditions and truthmakers we should be less alarmed by the fact that all four exemplary theories of law can be classified as more or less supportive of legal propositionalism as a metaontological view about legal ontological commitment. This remarkable convergence does not downplay the pervasive differences between these theories but it serves to highlight a methodological possibility that seems to have been neglected so far. If my attribution of legal propositionalism to theories across the positivist-antipositivist spectrum holds, it would be a legitimate option to scrutinize all four theories from a common vantage point by questioning their shared metajurisprudential premise instead of trying to evaluate what this common premise entails for each theory separately. As previously explained, the idea is that irrespective of how each of the four theories proceeds to defend a theory of truth conditions for legal statements, they all converge in that the truthmakers of the propositions expressed by these statements must feature the entities quantified over by these truth conditions. In random order we have been acquainted with at least four eligible truthmakers for legal propositions: facts about the existence of legal norms (Raz), facts about the existence of plans (Shapiro), facts about the obtaining of legal obligations, rights and powers 331 (Greenberg) and facts about the obtaining of principles of political morality (Dworkin). All these kinds of fact feature among their constituents the entities that also figure in the truth conditions of the respective legal statements which is precisely what the metaontological thesis of legal propositionalism predicts. The interesting upshot of this uniformity is that there seems to be no room for substantive metajurisprudential disagreement among these four candidates with respect to the question of what accounts for a theory’s ontological commitments. This impressive convergence does not entail that disagreement at this level is practically impossible precisely because, as I intend to argue in the last section of this chapter, there is room to argue in favor of the competing truthmaker view as the better metaontological theory of jurisprudential commitment. IV.3. Disagreement over Legal Grounding Up to this point the varieties of jurisprudential and metajurisprudential disagreement we have encountered are intimately connected with the nature of legality in the sense that they regard either the nature of facts about legal content or the nature of its constituting materials or the relation between these two. In this last section I will explore how theoretical disagreement about law manifests itself at the most fundamental level. Again the scope of questions that may be asked at this level can 332 accommodate disputes one could characterize as first-order or second-order depending on the degree of abstraction we allow. The first level is the one that Dworkin had actually reserved for use when he coined the term ‘theoretical disagreement about law’. This is the level featuring the non-legal facts in virtue of which the truthmakers of legal propositions, be they legal facts or whatever these facts are reducible to, obtain. This is perhaps the only level at which the distinction between positivism and antipositivism is manifested in the least distorting way. Generally speaking it is fairly obvious by now that unmediated appeals to this distinction fail to capture many questions about the metaphysics of legal content in a joint-carving, so to speak, way. For instance, we saw that a positivist like Raz and an antipositivist like Greenberg would most likely welcome the possibility of legal constitution. Moreover, it became less obvious whether antipositivists like Greenberg and Dworkin would converge in the object of their ontological commitment. That being said, the positivist-antipositivist divide remains a useful device for making informative distinctions provided that its applicability is restricted to the question of what grounds facts about legal content. The second, more abstract level invites us to consider the possibility of whether and how facts about legal grounding, that is, facts about which facts ground legal facts (or their substitutes) are themselves amenable to further grounding. This is precisely the instance wherein I purport to draw an analogy between the question of what in Greenberg’s terms makes legal 333 grounding rationally intelligible and the question of what grounds the non- categorical (modal and sortal) difference between abstractly or materially coincident objects. The latter question concerns the grounding of not just one but a variety of modal or sortal facts about constituting and constituted objects. Instead of employing this analogy across the spectrum of possible modal and sortal facts about legal content I will confine my attention to one modal fact that corresponds to the first-order question raised above. The crucial question is what if anything grounds the fact that facts about legal content are grounded in non-legal facts. Like any fact about grounding this fact is also modally nuanced in the sense that the obtaining of the explanans necessitates the obtaining of the explanandum. If something could uniquely characterize my way of handling this aspect of jurisprudential disagreement it is the fact that it purports to disassociate one’s participation from her status as a legal positivist or antipositivist. As I critically remarked in the Introduction, a major problem with how theoretical disagreement about law is understood is the fact that its operative principles are usurped and modelled in a way that can exclusively accommodate disagreement either about the descriptive grounds of legal content or about its normative grounds but never about whether facts about legal content are grounded in social facts or also partly in normative facts. This is precisely the way in which both Dworkin and Shapiro attempt to model theoretical disagreement about law each one from the perspective of his own theory of law. 334 This restrictively idiosyncratic treatment of the concept of theoretical disagreement results in what I will call the Absurdity Thesis. According to the Absurdity Thesis, whereas a legal positivist and a legal antipositivist can qualify as engaging in meaningful philosophical disagreement about the nature of law they cannot engage in meaningful theoretical disagreement about the grounds of law. In other words, the impression we get by a cursory study of the relevant literature is that the two sides are portrayed as being capable of disagreeing about whether the extension of legality as the very general concept of law that gives certain acts or norms their identity is determined solely by descriptive or also by normative facts but not as being equally capable of meaningfully disagreeing about whether a particular legal fact of the form ‘it is legally obligatory to φ in S’ is grounded exclusively in descriptive facts or also in normative facts. The latter type of disagreement turns out to be merely verbal as the two sides mean radically different things by the notion of legal facts. Positivists like Raz or Shapiro take legal facts to be descriptive facts about the existence of legal norms or “legal” plans respectively, whereas antipositivists like Dworkin or Greenberg regard legal facts as normative facts about the application of principles of political morality or about the obtaining of legal obligations, rights or powers respectively. In what follows I shall claim that both parties to this debate are equally complicit with regard to the ‘insular”, so to speak, way of portraying theoretical disagreement about the grounds of law. Although the focus of 335 my exposition is the nature of theoretical disagreement about the grounds of law I believe that the origin of this misconception is to be traced in the format of a different type of disagreement regarding the methodology of jurisprudence. The latter type of disagreement is traditionally instantiated by the dispute between proponents of descriptive and proponents of normative jurisprudence. Descriptivists argue that the task of analytic jurisprudence is to provide a description of law either by means of analyzing law as a functional, normative or social kind or by means of analyzing the concept of law by appeal to necessary and sufficient conditions for identifying a social structure as a legal system. Both descriptivist approaches focus on the question of what law is as if it were a matter of descriptive rather than evaluative fact. On the other hand, normativists argue that the proper task of analytic jurisprudence is to provide a coherent moral justification of legal practice such that the pivotal question for analytic legal philosophers is what law ought to be or, more precisely, what makes law’s demands on us morally legitimate. Before evaluating the impact of this methodological controversy it might be useful to depict the order of emergence of three distinct varieties of disagreement about law as they are commonly conceptualized.249 The ordering I will present is a function of the degree of abstractness each type of disagreement allows in framing its questions. As a way of calibrating the 249 In their present formulation all three types of disagreement are commonly perceived as meaningful by all participants precisely because they seem to employ the same concept of law at each level of disagreement. 336 degree of abstractness I will use Dworkin’s distinction between the sociological, the taxonomic and the doctrinal concept of law. I should caution that the conceptual vocabulary I purport to use is not meant to cast Dworkin’s theory in favorable light for two distinct reasons; firstly, I do not aim to present one concept of law as more pivotal than the rest and, secondly, my illustrative use of Dworkin’s suggested concepts does not strictly correspond to how Dworkin himself would prefer to allocate these concepts across the spectrum of legal disagreement. That being said I do believe that there is a strong correlation between these three different concepts of law and the three types of disagreement. I. Disagreement about the Methodology of Jurisprudence Sociological Descriptivism : What is legal practice Sociological Normativism: What justifies legal practice II. Disagreement about the Nature of Law (Disagreement about Essence) Taxonomic Positivism: Morality does not determine the extension of Legality Taxonomic Antipositivism: Morality determines the extension of Legality III. Disagreement about the Grounds of Law (Theoretical Disagreement) Descriptive Doctrinal Disagreement about the facts that ground legal facts Normative Doctrinal Disagreement about the facts that ground legal facts 337 At the methodological level, the crux of the controversy lies in the question of what use we are to make of the institutional social structure we call ‘law’. This glibly corresponds to Dworkin’s ‘sociological concept of law’250 which more or less purports to capture the identity criteria for classifying a general practice or institutional structure as a legal system. Traditionally, questions about whether Nazi law was really law or whether there can exist non-coercive legal systems fall in this conceptual domain.251 In this sense, the descriptivist affirms that analytic jurisprudence proceeds to understand law by elucidating what individuates a legal practice as such.252 Moreover, there is a a host of nuanced subdivisions or, perhaps, 250 Dworkin offers a description rather than a definition of different concepts of law. With regard to the sociological concept of law he remarks that ‘we use ‘law’ to name a particular type of institutional social structure. We might ask, for instance, using that sociological concept, when law first appeared in primitive tribal societies, or whether commerce is possible without law’ (in Justice in Robes, supra note 23, p. 3). 251 Nigel Simmonds is perhaps an exception to this polarity. His Hegelian bent makes reflection on the platitudinous actuality of concepts a central task. He takes the divide between analytical and normative jurisprudence as a non-issue noting that ‘law is an intrinsically moral idea, and that inquiry into the nature of law is ultimately a moral inquiry; and it will be argued that system-specific debates about law’s content can never wholly be separated from the philosophical inquiry into the nature of law as such.’ (NE Simmonds, Law as a Moral Idea, Oxford: Oxford University Press, 2007, p. 6). 252 Joseph Raz offers a concise formulation of this descriptivist approach to jurisprudential methodology when he points out that legal philosophers ‘produce explanations of the law, and therefore also of the concept of law, the concept which singles out legal systems from other normative and social institutions and practices’ (see his ‘Two Views of the Nature of the Theory of Law: A Partial Comparison’ in Legal Theory (1998) 4: 249-82, at 276. On another occasion Raz remakrs that ‘[legal] philosophy has to be content with those few features which all legal systems necessarily possess’ (in Joseph Raz, The Authority of Law, supra note 11, p. 105). 338 competing conceptions of what it means to do descriptive jurisprudence. The spectrum is long enough to feature views ranging from a wholehearted espousal of a naturalistic epistemology that severely limits the role of a priori conceptual analysis in law to indirectly evaluative theories that aspire to make a case for a morally neutral legal theory that is nonetheless informed by non-moral, evaluative considerations.253 By sharp contrast, the normativist retorts that this descriptive approach is dangerously close to licensing the absorption of legal philosophy by the sociology of law. In her dissenting opinion, what identifies legal philosophy as a distinct type of discourse is its preoccupation with the normative impact of legal practice.254 253 Brian Leiter’s ‘naturalized jurisprudence’ is a typical instance of a thoroughly empiricist descriptive methodology for law. Leiter suggests that a typical example of an all-the-way- down naturalistic jurisprudence is the mid-20th-century movement of Scandinavian Legal Realism which sought reductive analyses for the use of normative terms in law in terms of empirical models for predicting official behavior. For a global presentation of this stream of thought cf. Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy, Oxford: Oxford University Press, 2007. On the opposite side of the descriptive spectrum we encounter views like Julie Dickson’s ‘indirectly evaluative legal theory’. Dickson takes indirectly evaluative judgments to be [j]udgments of which features of the law it is important and significant to explain…that neither entail nor require support from directly evaluative judgments such as whether and under what conditions law is morally justified or creates moral obligations to obey it’ (J. Dickson, ‘Methodology in Jurisprudence: A Critical Survey’ in Legal Theory (2004) 10: 117–156, p. 126. For an in-depth analysis of this approach cf. Julie Dickson, Evaluation and Legal Theory, Oxford: Hart Publishing, 2001, chs. 2 and 3. 254 It bears emphasizing that a legal antipositivist need not be committed to a normativist methodology as a matter of conceptual truth. Michael Moore is a typical representative of antipositivist descriptivism about legal methodology. He lucidly states this point when he remarks that ‘ours is a quest in descriptive general jurisprudence’ (Michael S. Moore, Educating Oneself in Public: Critical Essays in Jurisprudence, Oxford: Oxford University Press, 2000, p. 309). The descriptivist element in Moore’s conception of jurisprudential 339 The type of disagreement that figures at the intermediate level between methodological and theoretical disagreement regards the nature of law in its most abstract sense and as such it invites us to ponder about what marks the essence of legality irrespective of its circumstantial attribution to acts or norms or its casuistic interpretation by different legal practices. This is precisely the level at which the debate about the relation between law and morality has reached its modal peak. Instead of asking whether and how morality is relevant in deciding what grounds legal facts we are used to ask whether and how morality necessarily determines the extension of ‘law’. Dworkin’s coinage of the term ‘taxonomic concept of law’ appositely serves to illustrate this essentialist type of disagreement.255 Taxonomic positivists argue that moral principles or facts about value cannot acquire a second- order attribute of being legal in virtue of their content or status as moral entities. Taxonomic antipositivists256 reject this claim mainly by way of methodology is attested by his constant invocation of the analogy he draws between the discovery by natural scientists of the underlying structure of natural kinds and the discovery of law’s and other artifactual kinds’ underlying function. Moore’s moral realist convictions are manifestly prevalent in his jurisprudential writings as evidenced by his oft- repeated claim that law’s nature is to be found in its function rather than its structure. He further associates this function with a ‘true moral value’ that ‘can be served by law uniquely’ (ibid. p. 294). 255 For an elucidation of Dworkin’s use of the taxonomic concept of law cf. Justice in Robes, supra note 23, p. 26-30. 256 Not any antipositivist would be willing to classify herself as a taxonomic antipositivist; hence not any antipositivist would be willing to engage in a taxonomic disagreement about the nature of law. For instance, it is definitely the case that Dworkin would abhor such a label precisely because the nub of his argument against positivism consists in the case he sets out to make about the plausibility of doctrinal antipositivism and the absurdity of trying to tap into the nature of law as if it were a natural kind. I also believe that 340 advancing functionalist or constitutivist arguments. For instance, they may argue that law has a distinctly moral function such that anything that falls short of realizing this function is defective qua law.257 Alternatively they may argue that it is part of what makes law essentially action-guiding that it purports to make law-conforming action morally intelligible.258 Greenberg would be equally unwilling to participate in this disagreement as his moral impact theory of law derives its strength from the idea that normative facts make it rationally intelligible why facts about the moral impact of social facts constitute law. 257 Mark Murphy is a proponent of this way of understanding what is commonly known as the ‘Weak Natural Law Thesis’. On this thesis law’s being a rational standard of conduct is not part of what it is to be a law but part of what it is to be non-defective or good qua law. Murphy tries to render this thesis as comprehensive as possible by presenting it as a thesis about the identity conditions of law rather than as a thesis about the realization conditions of law. The later conditions are captured by what he refers to as the ‘hypothetical necessity argument’ which acknowledges the importance of attaching a set of realization requirements on the constitutional ability of an object to perform its essential function. Whereas, as Murphy explains, being constitutionally capable of being a rational standard— as opposed to actually being a rational standard—is an essential property of law, it remains open ‘for legal theorists to argue from this thesis about law’s office to necessary conditions on being law that are either normative or non-normative’ (see his ‘The Explanatory Role of the Weak Natural Law Thesis’ in Wil Waluchow and Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law, Oxford: Oxford University Press, 2013, p. 3-21, p. 14). 258 Lon Fuller develops a constitutivist argument in support of his thesis about the ‘inner morality of law’. On Fuller’s antipositivist theory law is the enterprise of guiding human conduct by subjecting it to governance by rules (see his The Morality of Law, rev. ed., New Haven: Yale University Press, 1969, p. 106). His non-instrumental or constitutivist idea is that law is essentially such that it is part of what it is to be guided by legal rules that they instantiate the rule of law principles. It is not that these principles are conducive to making legal guidance good or valuable. Rather they are part of what make legal guidance possible as such. For a comprehensive defense of Fullerian constitutivism see Mark J. Bennett, ‘Hart and Raz on the Non-Instrumental Moral Value of the Rule of Law: A Reconsideration’ in Law and Philosophy (2011) 30: 603-35. 341 The Absurdity Thesis assumes prominence the moment we descend to the level of theoretical disagreement about the grounds of legal facts, or in my preferred terms, the grounds of the truthmakers of legal propositions. Dworkin has coined the term ‘doctrinal’ to describe jurisprudential debates on what the law of a specific jurisdiction requires. Whereas taxonomic disagreement about law enables, to a considerable degree, a meaningful confrontation of positivist and antipositivist views, doctrinal disagreement about law appears to be bifurcated between a descriptive and a normative strand of disagreement. This is clearly evidenced by Dworkin’s distinction between analytic doctrinal positivism and political doctrinal positivism.259 On the standard picture only the latter type of positivism can be meaningfully represented in normative doctrinal disputes about the grounds of law, whereas the former type figures exclusively in the descriptive version of doctrinal disagreement which Dworkin rejects as philosophically uninteresting. Dworkin associates the political genre of positivism with what is broadly known as ‘normative positivism’260 which seems to be more 259 Justice in Robes, supra note 23, p. 26-32. In Law’s Empire Dworkin describes the same notion of evaluative positivism as ‘legal conventionalism’. His position is aptly given by his comment in the latter book that ‘[t]he heart of any positive conception of law is its answer to the question why past politics is decisive of present rights…Past political decisions justify coercion because, and therefore only when, they give fair warning by making the occasions of coercion depend on plain facts available to all rather than on fresh judgments of political morality, which different judges might make differently’ (Law’s Empire, supra note 21, p. 117). 260 For an explication of the standard notion of descriptive or analytic positivism cf. Jules L Coleman, ‘Negative and Positive Positivism’ (1982) 11 (1) Journal of Legal Studies (1982) 11 (1): 139-64. Coleman presents what he takes to be the dominant conception of legal positivism as ‘conceptual or analytic claim about law, and that claim should not be 342 like a historically constructed continuum of views about the value of separating positive law from moral judgment rather than a particular account of the nature of law. The cluster of views falling under the generic name ‘normative positivism’ is impressively comprehensive ranging from historically embedded political accounts of the value of positive law- making261 and jurisprudential accounts of why moral grounds of legal truth are conceptually possible but morally problematic262 to methodological confused with programmatic or normative interests certain positivists, especially Bentham, might have had.’ (ibid, p. 147). 261 Varieties of this strand of normative positivism hail back to seminal criticisms of the natural law tradition by philosophers of the Enlightenment, like Jeremy Bentham and Immanuel Kant. Despite their radically different philosophical bents, they both sought to challenge natural law’s inflationary metaphysical foundations on empiricist and rationalist grounds respectively. Martin Stone showcases the informative convergence of utilitarian and deontological theories of law by defining the scope of their contrast. In his own words, ‘Kant is effectively ad idem with Bentham (against the earlier “natural law” theorist) in saying (in Bentham‘s words) that “there are no rights without law—no rights contrary to law – no rights anterior to the law.” But the grounds which upon which Kant and Bentham affirm the same conclusion are quite different’ (Martin Stone, ‘Positivism as Opposed to What? Law and the Moral Idea of Right’ (February 17, 2010), Cardozo Legal Studies Research Paper No. 290, available at SSRN: http://ssrn.com/abstract=1554500, p. 30). 262 Despite the lack of taxonomical consensus it is at least plausible to associate the spirit of contemporary normative positivism as defended in the work of philosophers like Jeremy Waldron (cf. his ‘Normative (or Ethical) Positivism’ in Jules Coleman (ed.), Hart’s Postcript: Essays on the Postscript to The Concept of Law, Oxford: Oxford University Press, 2001, p. 411-33) and David Dyzenhaus (cf. his ‘Positivism’s Stagnant Research Program’ in Oxford Journal of Legal Studies 2000 20 (4): 703-22) with the Kantian tradition of legal thought. Waldron’s appreciation of the Kantian conception of positive law is evidenced by the utility he attributes to it in his own long-lasting preoccupation with the question of political disagreement (see his ‘Kant’s Legal Positivism’ in Harvard Law Review (1996) 109 (7): 1535-66, at 1537-8). By contrast, other normative positivists like Tom Campbell (see his The Legal Theory of Ethical Positivism, Aldershot: Ashgate/Dartmouth, 1996), Gerald Postema (cf. his Bentham and the Common Law Tradition, Oxford: Oxford University Press, 343 bridging arguments about the connection between normative political theory and analytic jurisprudence.263 On this picture what supports the accusation of absurdity is not the fact that legal positivism is never confronted with legal antipositivism at the level of the grounds of legal facts but the fact that the normative version under which it figures in this dispute 1986) and Neil MacCormick (cf. his ‘A Moralistic Case for A-moralistic Law?’ in Valparaiso University Law Review (1985) 20 (1): 1-41) are closer to the Benthamite, consequentialist strand of normative positivism. MacCormick, for instance, notes with regard to the intricacies of determining the content of the law that ‘[t]here is a spectrum which ranges from the obviously simple to the highly contestable, and across that spectrum it could never be judged more than vaguely at what point some doubt as to ‘relevancy’ or ‘interpretation’ or ‘classification’ could be raised so as to clear the way for exploiting consequentialist arguments and arguments of principle or analogy’ (see his Legal Reasoning and Legal Theory, 2nd revised edition, Oxford: Oxford University Press, 1994, p. 230). In a similar rule-consequentialist vein, Campbell claims that ‘[t]he factors that turn rationales for having rules into rationales for having laws relate mainly to the seriousness of the purposes the rules serve and the extent to which general conformity to precise and agreed rules is a precondition of their effectiveness’ (in Tom D. Campbell, Prescriptive Legal Positivism: Law, Rights and Democracy, London: UCL Press, 2004, p. 36). 263 Stephen Perry’s defense of the value-of-intentionality condition on legitimate political authority is a combined task marshalling arguments from both political and legal philosophy. On Perry’s view, the value of intentionally changing another person’s normative condition by one’s say-so points to the inner morality of positive law. In Perry’s own words, ‘[j]urisprudence is related to political philosophy in many ways, but the one with which I am concerned here is the close relationship which clearly exists between the concept of authority and the concept of law. I would like to conclude with the perhaps overly bold suggestion that the value-based conception of a moral power is the conceptual core and, perhaps, – depending on one’s views about descriptive versus normative jurisprudence – also the moral core both of jurisprudence and of law itself’ (S. Perry, ‘Political Authority and Political Obligation’ in Leslie Green and Brian Leiter (eds.), Oxford Studies in Philosophy of Law, Volume 2, Oxford: Oxford University Press, 2013, pp. 1-74, p. 72). For a contrastive elaboration of this view with traditional accounts of legal positivism see his ‘Beyond the Distinction between Positivism and Non-Positivism’ in Ratio 344 is not recognized by the majority of positivist philosophers as a primary or even genuine version of analytic positivism. The result is that the doctrinal dispute about the grounds of legal facts cannot inherit the inclusiveness of the genuine taxonomic dispute about the nature of law. The former is genuine only among political variants of positivist and antipositivist views or among analytic variants of legal positivism. In what remains I would like to supplement my motivation for labeling this result as absurd with an explanatory claim. What I am about to argue is that we can remain excusably blind to the absurdity of this outcome for as long as it remains cloaked under the current methodological divide between descriptive and normative jurisprudence. As noted at the beginning of this section, the dispute between analytic (descriptive) positivism and antipositivism about the grounds of legal facts appears to be merely verbal precisely because the parties to this debate hold radically different views about the nature of legal facts. Whereas the former take them to be purely descriptive facts about the existence of legal norms or the existence of whatever these norms are reducible to, the latter regard them as more determinate variants of the broader family of normative facts. Fortunately, the verbalness of this dispute is not irreversible. There is still room for arguing that positivists and antipositivists can meaningfully disagree about the grounds of legal facts provided that we reconsider the way the divide between descriptive and normative jurisprudence is conceptualized. Whereas very little has been said about the structural similarity of this Juris (2009) 22 (3): 311-25. 345 divide with other neighboring divides such as the one between ideal and descriptive political theory, or between metaethics and normative ethics, we can safely infer a common pattern in the way these cognate divisions are constructed. The building pattern I have in mind is informed by a mutually recognized principle of theoretical neutrality264 governing the relation between overlapping domains of discourse marked by different levels of abstraction. Adjusted to the present context this principle holds that a metajurisprudential theory remains neutral so long as it does not entail a certain jurisprudential thesis. The formulation of this principle is strictly so chosen in order to exclude another association of metatheoretical discourse with neutrality. This is the view that what makes a metatheory neutral is that it has no direct implications for the methodology of substantive theories.265 In view of the way in which the taxonomical controversy 264 This quest for neutrality can be traced back to A.J. Ayer’s alarming remark that metaethics is or should stay neutral vis-à-vis substantive normative theories. In his words, metatheoretical work on ethics can ‘make no ethical pronouncements’ (A.J. Ayer, Language, Truth and Logic, 2nd rev. edn. London: Gollancz, 1946, p. 103). 265 I owe this distinction and the argument that follows from it to Tristram McPherson’s account of unity in moral theorizing. Keeping analogies in sight McPherson’s idea is that ‘[t]he best way to pursue the project of normative ethical theorizing involves integrating that theorizing with metaethical theorizing.’ (see T. McPherson, ‘Unifying Moral Methodology’ in Pacific Philosophical Quarterly (2012) 93(4): 523-49, at 524). He contrasts his Unity Thesis with traditional conceptions of metethical neutrality that try to insulate the progress made in the domain of metaethical inquiry from infiltrating normative debates. In this regard he singles out the Rawlsian method of reflective equilibrium as a solid token of a tradition of thought that seeks to guard the methodological independence of normative ethical inquiry against metaethical argument. 346 between descriptivist and normativist approaches to jurisprudential methodology has been articulated I would dare to suggest that that the fact that the current division of opinion more or less overtly sustains the Absurdity Thesis is partly explained by an unpronounced assumption on the part of jurisprudential descriptivists that the methodology of normative jurisprudence violates the neutrality of metajurisprudential inquiry and hence it cannot qualify as a proper metatheoretical thesis precisely because it has direct normative implications for the methodology of first-order theoretical disagreement about the grounds of law. On this assumption there can be no genuine disagreement about the nature of the grounds of legal facts between descriptivist and normativist theorists because the former would consider themselves as violating what they take to be a properly neutral metajurisprudence. In response to this misconception I would like to suggest a truce that preserves the insularity between first-order instances of descriptive and normative doctrinal disagreement about the grounds of legal facts whilst allowing the possibility of a second-order instance of disagreement not about the grounds (descriptive or normative) of legal facts but about the natural of legal grounding. This latter type of disagreement respects the neutral character of its degree of abstractness in the proper sense that it does not entail a certain jurisprudential view like exclusive legal positivism, plan positivism or interpretivism. At the same time it has implications for the methodology of general jurisprudence precisely in the sense that this 347 type of metajurisprudential disagreement can be conducive to choosing correctly between contrasting views on legal epistemology which can in turn have implications for our assessment of the explanatory potency of competing theories of law. By legal epistemology I mean nothing more than what a proper theory or method of legal interpretation would consider as the proper standards for ascertaining the content of the law from law practices. To see how the metaphysically oriented metajurisprudential disagreement about the nature of legal grounding can be relevant for choosing among competing epistemological theories of legal content and, consequently, how the latter choice can also affect our assessment of substantive theories of law I will have to unpack a bit further the precise meaning I intend to attribute to the concept of (the nature of) legal grounding. A nascent concern among philosophers working in metaphysics and epistemology regards the question of whether facts about grounding, namely, facts about what grounds what, can themselves be grounded in other facts or whether they are fundamental and, if so, why.266 Occasionally, there are philosophers who believe that the same question should be cast in epistemological terms as a question about what makes it intelligible that certain facts ground certain other facts. In other words, they invite us to ask 266 For an overview of this debate see Kelly Trogdon, ‘An Introduction to Grounding’ in M. Hoeltje, B. Schnieder, and A. Steinberg (eds.), Varieties of Dependence: Ontological Dependence, Grounding, Supervenience, Response-Dependence (Basic Philosophical Concepts), Philosophia Verlag, 2013, pp. 97-122. 348 what makes facts about grounding epistemically accessible rather than what makes them obtain.267 The ambivalence with respect to the categorization of this question as purely metaphysical or as mainly epistemological is indicative of a more general concern about the extent to which the epistemological foundations of a theory can also track the theory’s metaphysical commitments. This is a debate I would like to forgo mainly because I lack the necessary insights and expertise to adjudicate the plurality of its aspects. Regardless of its proper resolution I believe that the controversy I have just described reveals the importance of disagreement about the nature of grounding for the assessment of a theory’s epistemic scrutability. At the same time, a theory’s epistemic accessibility is crucial for evaluating the explanatory force of its content. For instance, a positive answer to the question of whether virtue ethics can explain how we can know what course of action is morally recommendable for a situation inviting the exercise of conflicting virtues is a first but very important victory of the theory’s general explanatory capacity which may have 267 An example is offered by Louis deRosset. He takes the case of a disjunctive fact of the form P v Q. Evidently, this fact is partly grounded in the fact that P. His premise then is that when explaining why P grounds P v Q any reference to the rules of disjunctive inference will only help to make this explanation epistemically accessible to a given audience. In his words, ‘[t]he facts one must cite to render the explanatory relation between and Beijing's cityhood is merely ancillary material. Indeed, the point of inserting ancillary material into the explanatory story is to deliver the relevant epistemic payoff— intelligibility—to one's audience. In this respect, it is analogous to an appeal to inference rules in an explanatory story backing the proposal to explain a disjunctive fact by appeal to one of its disjuncts.’ (in ‘Grounding Explanations’ in Philosophers' Imprint (2013) 13(7): 1- 26, at 22) 349 interesting implications for its capacity to explain why atomic moral facts are grounded in facts about virtue. Transposing this debate to law we may similarly ask whether exclusive legal positivism can explain how we can know that a particular legal norm exists in virtue of a fact about the issuance of an authoritative pronouncement, or whether interpretivism can explain how we can know that facts about the instantiation of principles of political morality both justify and are triggered by aspects of law practices. In what follows, I will try to introduce some formal distinctions that are already applicable in debates in general metaphysics in the hope that I can demonstrate how these distinctions could animate a metajurisprudential disagreement about the grounds of facts about legal grounding. The upshot will be that an interpretivist or a moral impact theorist can be genuinely engaged in a second-order dispute with positivist theories about the grounds of legal facts. This second-order dispute remains neutral with regard to the first- order insular disagreements about the descriptive or normative grounds of legal facts respectively in the sense that it does not directly entail a certain thesis about the content of these grounds. That being said, this more abstract type of dispute can legitimately reclaim its relevance for the methodology of descriptive or normative doctrinal disagreement precisely because it can affect both the way in which we should epistemically access facts about legal grounding and the way in which different candidate grounds (descriptive or normative) can explain the resolution of conflicts 350 between different aspects of law practices or the resolution of problems of legal indeterminacy. To the best of my knowledge our most intimate acquaintance so far with the importance of making sense of the relation of grounding and concomitantly of the relation of legal grounding is owed to Mark Greenberg’s notion of intelligibility-enabling facts. In Greenberg’s own words: “The A facts rationally determine the B facts just in case the A facts metaphysically determine the B facts and the obtaining of the A facts makes intelligible or rationally explains the B facts’ obtaining. Thus, L is the conjunction of two doctrines, a metaphysical-determination doctrine and a rational-relation doctrine.”268 By way of this conjunction it seems that on Greenberg’s own understanding of the rational determination relation intelligibility-enabling facts and non- legal facts operate at the same level of first-order grounding, namely, they jointly ground legal facts.269 In what follows, whereas I will continue to treat Greenberg’s rational determination thesis as a compass for how the broader debate on grounding can be transposed to our local discussion about the 268 Greenberg, Mark, ‘How Fact Make Law’ in Legal Theory (2004) 10:163. 269 For a corroboration of this understanding of rational determination see also David Plunkett, ‘A Positivist Route for Explaining How Facts Make Law’ in Legal Theory (2012) 18 (2):139-207. Plunkett remarks that ‘in cases of rational grounding, where one set of facts rationally grounds another set of facts, the grounding-relationship facts are always intelligible to us. Moreover, this is no accident. For in cases of rational grounding, the fact of intelligibility is itself among the grounds of B facts’ (p. 156). 351 nature of legal grounding, I will also introduce two important reasons for making the structure thesis more abstract. First off, locating the grounds of legal facts and their intelligibility- enabling facts on the same level of explanation imposes an unnecessary constraint on how we can make sense of our disagreement about the latter with respect to the former. In other words, if for instance, the fact that a moral obligation brought about by the actions of legal institutions makes the moral situation better AND the fact the actions of legal institutions owe their impact to considerations of democracy operate on the same level of explanation270 it will be more difficult to make sense of how Greenberg could intelligibly disagree with a positivist claiming that the intelligibility- enabling facts are conceptual rather than normative facts. The reason is that it will be impossible to provisionally bracket the primary grounds of each theory in a principled way. By ‘primary grounds’ I mean the case- specific grounds that figure in each explanation, namely, the normative fact that a moral obligation brought about by the actions of legal institutions makes the moral situation better (Greenberg) and, for instance, the descriptive fact that a given “legal” plan is authorized by the system’s master plan (Shapiro). Moreover, by introducing this amendment I purport to obviate a plausible objection to Greenberg’s invocation of facts about value as intelligibility enablers. The objection goes roughly as follows: if legal facts are grounded partly in descriptive facts about the activities of 270 By ‘same level of explanation’ I refer to the level of what grounds legal facts, as opposed to the level of what grounds the fact that some non-legal facts ground some legal facts. 352 legal officials and partly in the fact that X enables us qua rational beings to make sense of the precise relation that holds between non-legal facts and legal facts, X merely assumes an epistemic rather than robustly metaphysical (or grounding) role. X cannot figure qua metaphysical ground at the same level of grounding with non-legal facts. This is so because the following hypothesis does not hold: if we assume that the set of non-legal facts that are needed for the grounding of a legal fact currently does not obtain, the fact X that makes the grounding impact of these non-legal facts intelligible cannot obtain either simply because there’s nothing to make sense of! But this is an absurd result if we take partial grounding at face value; it is part of the concept of what it is for X to be a partial (as opposed to a full) ground that X can obtain and yet not ground Z because the other partial ground Y is missing. In light of these caveats I would like to suggest that we consider the possibility of treating these intelligibility-enabling facts as facts that operate at the level of grounding or explain facts about the grounding of facts by other facts. In the legal case this regimentation will deliver the following definition: an intelligibility-enabling fact is a fact that grounds the fact that a non-legal fact grounds a legal fact. I believe that this qualification remains friendly to the spirit of Greenberg’s apposite remarks about the necessity of making sense of legal grounding itself. That being said, there can be at least four distinct routes to affirming or denying the existence or purpose of the grounds of grounding facts. One position which I intend to associate with 353 Greenberg’s attribution to Raz of the so-called explanatory directness thesis is that facts about the grounding of legal facts by non-legal facts not fundamental facts because there are no fundamental facts. Another position which I intend to associate with Dworkin’s conception of the virtuous circularity of legal grounding is that the grounds of facts about legal grounding are iterated in the sense that that [[p] is grounded in [q]] is grounded in [q], [[[p] is grounded in [q]] is grounded in [q]] is grounded in [q], and so on. A third position is the one Greenberg seems to endorse for his own theory of law which holds that it is normative facts about the value of democracy, fairness or other substantive moral values that ground facts about legal grounding. Finally, a fourth view which is actually an internal variant of the former view can be associated with a conceptualist reading of Shapiro’s claims about the function of legal institutions and legal norms. On this approach, what grounds facts about legal grounding are conceptual truths of this sort. Perhaps the most challenging aspect of the above distinctions regards a problem about the relation of grounding facts to the notion of fundamentality. A common description of this problem is provided by Ted Sider’s gloss on what he calls Collapse.271 Collapse is a problem that emerges as soon as we take grounding claims to be claims to the effect that reality has a layered structure. Suppose that [p] is immediately grounded in [q]; construed as a claim about what is more fundamental than what [q] is 271 Ted, Sider, Writing the Book of the World, Oxford University Press, 2011, at §7.2, 8.2.1. 354 more fundamental than [p]. By virtue of the claim about fundamentality, the fact that [p] is grounded in [q] is also fundamental. But if that is the case then [p] will figure in any complete description of the more fundamental layer such that all layers collapse into one. Collapse becomes an imminent threat for anyone who wishes to understand how to ground facts about grounding explanations. One possible explanation is the one summarized by the concept of iterated ground. Philosophers like Louis deRosset272 and Karen Bennett273 try to solve this puzzle by advancing the idea that a grounding explanation is directly grounded in its explanans such that [[p] is grounded in [q]] is grounded in [q], [[[p] is grounded in [q]] is grounded in [q]] is grounded in [q], and so on. To illustrate his case, deRosset takes as an exemplary explanation the statement that Beijing is a city because ψ. His suggestion is that [Beijing is a city because ψ] because ψ for three reasons: first, appealing to both relata does not avoid the Collapse, second, appealing to Beijing’s cityhood or to some other fact involving neither relata trivializes the explanatory relevance of ψ and thirdly postulating ψ as the explanans of [Beijing is a city because ψ] meets the requirement of upward necessitation, namely, the principle that for an explanation to be complete its explanans must necessitate its explanandum. To see how this line of argument applies to Dworkin’s metajurisprudential conception of legal grounding we need only replace the variables in the 272 Louis deRosset, ‘Grounding Explanations’, supra note 70. 273 Bennett, Karen, ‘By our Bootstraps’ in Philosophical Perspectives (2011) 25 (1): 27-41. 355 explanation [A is grounded in B]. Because of Collapse it would follow that the fact that facts about law-practices ground legal facts is also fundamental thus enabling legal facts to figure every time at the fundamental level of explanation. The alternative interpretation which fits Dworkin’s fusion of the dimension of fit with the dimension of justification would entail that the facts about principled consistency with past political practices operate as iterated grounds. On the level of grounding the fact that a given obligation justifies the consistency with which the practice has been enforcing past demands both grounds the fact that this obligation is a proper instantiation of the principles of political morality embodied within a given political community. On the level of what grounds this grounding fact it would be the same fact about principled consistency that is supposed to ground that a fact about legal content is grounded by a fact about principled consistency. Despite the formal oddity of this solution it remains a valid option that glibly corresponds to Dworkin’s elaborated view that there is no distinct explanatory role reserved for brute pre-interpretive data about a legal practice. On the contrary, legal practices are such are individuated by reference to their normative impact. The hypothesis that facts about principled consistency operate as iterated grounds can be corroborated by appeal to deRosset’s and Bennett’s claim that the postulation of a third fact that involves neither the grounded fact nor the grounding fact trivializes the explanatory relevance of the grounding facts. In Dworkin’s case this claim can be translated into the 356 more familiar claim that appeal to practice-independent normative facts would assign to morality the role of a normative filter. This could play out in two ways: either morality would filter out any parts of past political practice that are inconsistent with what it now requires or morality or it would filter out those aspects of the practice whose moral objectionability exceeds some threshold of moral acceptability.274 At any rate, I believe that Dworkin would be happy to recognize at least an aspect of the rationale of his own view within the rationale of the theory of iterated grounds. The reason is that despite differences in their degree of abstractness and practical import both views take the trivialization of the explanatory role of the primary grounds to be an unwanted consequence of postulating a tertium quid as an explanation of why facts A ground facts B. That being said, I cannot be oblivious to the certainty of Dworkin’s aversion to the metajurisprudential coating of his original view about the ineliminable normative relevance of legal practices. This is the reason it would be unfair to take the iterated grounds thesis as an interpretive expansion or elaboration of Dworkin’s view. At the same time, however, this is not an argument against the availability of this more abstract level of voicing Dworkin’s point about the indistinguishability of “fit” from “justification”. Moreover, Dworkin’s first- 274 Greenberg rejects this understanding of intelligibility-enabling facts by introducing a relevance limitation. On this qualification the sub specie aeternitatis moral goodness of some state of affairs will figure as an intelligibility enabler only to the extent that its goodness contributes to making it intelligible that an aspect of a particular law practice has one bearing rather than another on the content of the law’ (see, Mark Greenberg, How Facts Make Law, p. 195). 357 order or normative version of this view is not an argument against the intelligibility of its metajurisprudential version precisely because the latter takes iteration to be a feature of grounding explanations in general rather than a feature of particular grounds. An alternative approach to grounding explanations seeks to terminate an iterative circuit of grounds by making the distinction between grounding and grounded facts a bit more fine-grained. Philosophers who object to the type of reasoning that deRosset employs in his attempt to address the Collapse problem typically suggest that besides facts about what grounds what there also exist in certain groundless facts concerning the essences of the entities that stand in the primary relation of grounding. This qualification yields the tripartite scheme on which this alternative view is premised. For convenience, I will adopt the term trialism275 in order to refer to this position. A characteristic defense of trialism is exemplified by Shamik Dasgupta’s argument in favor of the existence of what he calls autonomous facts.276 To briefly illustrate his line of reasoning, we may suppose that the fact that action A is wrong is grounded in the fact that A fails to maximize utility. For Dasgupta, this explanatory fact is grounded in 275 I owe this term to Louis deRosset. In his words, all basic facts are fundamental: they do not obtain in virtue of any further facts. But the converse is not guaranteed: some fundamental facts—in particular, those fundamental facts concerning what grounds what— may fail to be basic. Thus, according to trialism, we need to distinguish two different kinds of fundamental fact: the basic facts and the fundamental grounding facts. (see his ‘Grounding Explanations’, supra note 70, p. 17). 276 Dasgupta, Shamik, ‘Metaphysical Rationalism’, manuscript available at http://www.shamik.net/, forthcoming in Noûs. 358 (i) the fact that part of what it is to be a wrong action is that if an action fails to maximize utility, that action is wrong, and (ii) A failed to maximize utility. Dasgupta’s way of eluding Collapse is to posit the existence of facts that are autonomous or basic but not grounding. It is autonomous or basic facts that are fundamental in the sense that they figure in the specification of fundamental reality. By contrast grounding facts are taken to be a tertium quid which are neither fundamental nor basic that together with basic facts can explain the obtaining of derivative or non-fundamental facts. So, in the present example the fact that part of what it is to be a wrong action is that if an action fails to maximize utility, that action is wrong is not itself a grounding fact but together with the fact that A failed to maximize utility it explains the full array of facts. In Dasgupta’s own words, an autonomous fact is not a brute fact, it’s just that ‘it is not apt for being grounded in the first place, if the question of why it obtains does not legitimately arise.’277 In what follows I would like to explore the way in which Dasgupta’s insight could serve the explanatory ambitions of two different ways of unpacking Greenberg’s notion of intelligibility-enabling facts. As expected the first way is envisaged by Greenberg himself when he proposes that ‘value facts are well suited to determining the relevance of law practices, for value facts include facts about the relevance of descriptive facts.’278 Greenberg takes this view to be the correct response to the fact that 277 Ibid. p. 7. 278 M. Greenberg, ‘How Facts Make Law’, p. 187. 359 descriptive facts about law practices cannot determine their own contribution to the content of the law. As it stands Greenberg’s formulation of the rational determination relation is not directly transparent to the way in which philosophers like Dasgupta would prefer to regiment an example of legal grounding. The reason is that, by the lights of this formulation, value facts and descriptive facts about law practices must operate on the same level as partial grounds of legal facts on pain of uncharitably distorting Greenberg’s view. A coarse-grained translation of this claim into a two-level claim would entail the absurd result that according to the moral impact theory of law legal facts are fully grounded in descriptive facts and that what explains this grounding fact are facts about value. Obviously this is not Greenberg’s view but this provisional failure to reparse his claim should not dissuade us from pursuing a more charitable avenue. This, of course, will require an interpretive initiative on my part which I think is worth the effort. The primer for decoding Greenberg’s rational determination thesis lies in his own remarks about the legally proper way of changing the moral profile. Despite the fact that as Greenberg himself confesses this is still a concept under elaboration279 he also acknowledges that the core of this concept is already available in the claim that ‘in order for a change in the moral profile 279 In his words, ‘we can use our understanding of what law and legal systems are supposed to do to explain which ways of generating obligations are legally proper—and therefore which obligations are legal. But I do not have a complete account of the legally proper way; further work is needed.’ (in M. Greenberg, ‘The Moral Impact Theory of Law’, supra note 16, pp. 1322-23). 360 to come about in the legally proper way, it must be the result of action by a legal institution that, by its nature, is supposed to improve the moral situation.’280 This claim can be thus used to enrich the content of the moral impact thesis as follows: The content of law is that part of the moral profile created by the actions of legal institutions in the legally proper way ↔ The content of the law is that part of the moral profile created by the actions of legal institutions in a way that makes the moral situation better. With this adjustment we may return to our initial concern about the proper level of abstraction at which facts about value figure in Greenberg’s explanatory model. I believe that the added complexity that might ensue from this reconstruction is outweighed by the obviation of the concerns I expressed earlier on about the co-presence of descriptive facts about law practices and facts about the value of democracy or fairness at the same level of grounding explanation. The emerging alternative would be to say that literally speaking the fact that a particular legal obligation obtains is grounded in the facts that particular aspects of the activity of legal institutions have changed the moral profile in a way that makes the moral situation better. On this alternative rendition this grounding fact is fundamental but not basic or autonomous. The autonomous fact in this case will be the fact that values such as democracy, fairness or procedural justice essentially figure in the 280 Ibid, p. 1324. 361 explanation of how certain aspects of the activity of legal institutions change the moral situation for the better. This latter fact is not in itself a grounding fact but together with the grounding fact that a particular legal obligation obtains because particular aspects of the activity of legal institutions have changed the moral profile in a way that makes the moral situation better they generate the derivative or non-fundamental fact that a particular legal obligation obtains. The following figure provides an illustration of this more elaborate view: Grounding Fact Legal Fact The legal obligation to φ in S obtains is grounded in the fact that particular aspects of the activity of legal institutions in S have changed the moral It is legally obligatory profile in a way that makes the moral to φ situation better Autonomous or Basic Fact Values such as democracy, fairness or procedural justice essentially figure in the explanation of how certain aspects of the activity of legal institutions change the moral situation for the better Although on this view both facts about what grounds what and basic or autonomous facts are needed in order to account for the obtaining of 362 derivative facts only the latter figure in the specification of fundamental reality. In our local case it is only the fact about the essential explanatory association the legally proper way of changing the moral profile with value facts about democracy, fairness and the like that should properly be taken as a fundamental normative fact. Another metajurisprudential application of trialism can be found in Shapiro’s conceptual argument about the relation between legal institutions and legal norms. This is not a novel interpretation. David Plunkett281 is the first to advance an interpretive enhancement of Shapiro’s theory against Greenberg’s doubts about the possibility of making legal grounding intelligible by appeal to non-normative facts. The only difference between Plunkett’s reading of Shapiro and my interpretive move is that he abides by the formal structure of Greenberg’s rational determination thesis without distinguishing between the levels of abstraction at which descriptive facts about the planning activity of legal officials and intelligibility-enabling facts perform their explanatory role. That being said, it is important to notice that the view I am about to associate with Shapiro’s planning theory of law can serve as an autonomous entry in a hypothetical episode of metajurisprudential disagreement about the nature of legal grounding. The only substantive difference with Greenberg’s potential use of the same view is that for Shapiro it is not normative or value facts that assume the role of autonomous or basic facts in generating legal content but conceptual facts 281 See his, ‘A Positivist Route for Explaining How Facts Make Law’ in Legal Theory 18 (2012):139-207. 363 about the nature of legal institutions and legal norms. Before attempting to flesh out this idea it is worth noting that Greenberg himself leaves open the possibility of conceptual intelligibility-enablers. He writes, ‘in principle, conceptual truths (that are not value facts) about law could, with law practices, make rationally intelligible the content of the law.’282 In what follows I shall rely heavily on Plunkett’s ingenious reconstruction of Shapiro’s remarks about the logic of legal planning with a view to injecting an additional refinement associated with the trialist conception of grounding. Plunkett takes as his starting point Greenberg’s refined version of conceptual truth according to which a robust conceptual truth ‘is not determined by consensus about the use of words and is not determined by our law practices’283 and at the same time does not depend or include moral facts. Greenberg’s suspicion about the prospect of associating legal grounding with conceptual truths is that conceptual and moral universal facts are so much alike in terms of their structure and explanatory function that it is highly unlikely that purported conceptual truths about law are not 282 M. Greenberg, ‘How Facts Make Law’, p. 233. Greenberg repeats the same remark at a later point in the same article It might be suggested that an appeal to conceptual truth offers a way to avoid the conclusion that the content of the law depends on value facts. The idea would be that the concept of law (or some other legal concept), rather than substantive value facts, determines that some models are better than others. As noted above, conceptual truth is the kind of consideration that could provide reasons of the necessary sort. The question is whether conceptual truth does so in the case of law.’ (ibid, p. 254). 283 Ibid, p. 255. 364 necessary moral truths in disguise.284 A beginning of an answer to Greenberg’s worry might involve the “strengthening” of a second-order definition I have already attributed to Shapiro’s account of legality as a property. The idea would be to say that the following definition possesses the status of a conceptual truth: Being legal just is the property of having some other properties P in B such that R(P), where R specifies a condition on members of B which is satisfied 284 In response to Greenberg’s worry Plunkett observes that there is no epistemic barrier to assuming that although Shapiro’s theory of law is prominently a metaphysical account of law it is supplemented by a panoply of revelatory concepts that could inform a positivist solution to the rational determination requirement. The distinction between revelatory and non-revelatory concepts is brought up by Chalmers in his defense of the relevance of a priori reflection. In short, for Chalmers, a concept C about a property P is a revelatory concept when a subject’s possessing the concept C puts that subject in a position to know (through a priori reflection) what the property P is. To this effect Plunkett draws on the work of philosophers like David Chalmers and Frank Jackson in order to showcase the relevance of a priori reflection both philosophers advocate for our understanding of abstract reality. In Plunkett’s words, ‘on Chalmers and Jackson’s view, there is a sort of intelligibility that is produced when one makes progress in conceptual analysis. Namely, one finds it more intelligible why true claims about the world that are made in one vocabulary (e.g., the vocabulary of the social sciences) necessarily determine true claims about the world that are made in some other vocabulary (e.g., the vocabulary of legal content).’ (D. Plunkett, ‘A Positivist Route for Explaining How Facts Make Law’, p. 184). Plunkett’s hypothesis then is that if legal concepts like ‘legal institution’ and ‘legal norm’ are revelatory concepts, ‘then possession of those concepts puts one in a position to have a constitutive understanding of what the relevant properties are, and not just a constitutive understanding of the conceptual content of the given concepts. In turn, it is then reasonable to hold that such conceptual facts, in illuminating the constitutive nature of these properties, are capable of illuminating something important about their grounding and, in particular, are capable of illuminating the fact that certain facts ground the legal facts.’ (ibid, p. 186). 365 just by those properties in B that allow their bearers to be represented as serving a moral aim Like Plunkett I also tend to believe that there is strong evidence in Shapiro’s analysis in favor of treating his treatment of legality as the second-order property of legal institutions and legal norms having other properties whose possession enables their bearers to be represented as serving (legal institution) or realizing (legal norm) a moral aim. At this point I will not regurgitate my remarks about the importance of preserving the notion of representation within this definition. It will only suffice to repeat that the relation of property instances like ‘a legal institution is a compulsory institution’ to the necessity of solving contentious moral problems is representational rather than explanatory. This is to say that it is not because the law has a moral aim that legal institutions must be compulsory institutions in order to serve it properly. The claim rather is that because the law is represented by planning officials as having a moral aim the compulsoriness of its institutions is also represented as being in the service of these aims. That being said, we may expand the previous definition into a version that corresponds to the ambit of Shapiro’s possible conceptual claim: It is a conceptual truth that being legal just is the property of being a shared, official, institutional, compulsory, self-certifying activity and/or norm of social planning in B such that R(P), where R specifies a condition 366 on members of B which is satisfied just by those properties in B that allow their bearers to be represented as serving a moral aim This definition purports to specify the exact content of Shapiro’s basic conceptual premise. That this is indeed his position is further corroborated by Shapiro’s own remarks about what he calls the ‘logic of planning’. The logic of planning is a set of conceptual claims about the determination of the existence and content of legal plans which are presented as following from Shapiro’s main cluster of claims that legal institutions are institutions of social planning of a certain kind and that the content of the law just is the content of a set of shared plans. Provided that by virtue of the above definition legal norms (much like the general activity that produces them) are shared, official, institutional, compulsory, self-certified plans that are represented as serving a moral aim, ‘then it follows’, Shapiro remarks, ‘that [their] existence and content cannot be determined by facts whose existence the law aims to settle. For if the existence or content of the law were determined in such a manner, then the proper way to ascertain its existence or content would be to deliberate about the merits of different courses of action. But the point of having plans is to obviate this very activity.’285 Shapiro calls this claim the ‘Simple Logic of Planning’ (SLOP). My own suggestion then will be that the conceptual fact that could play the role of an autonomous or basic fact in the spirit of Dasgupta’s argument is 285 S. Shapiro, Legality, supra note 29, p. 275. 367 precisely this fact about the logic of legal planning.286 On this picture, conceptual facts about the logic of planning will help to explain why facts about the shared acceptance of a master plan ground the existence of plans.287 As an illustration of how Shapiro would see this reconstruction as a reply to Greenberg’s doubts about the explanatory relevance of cconceptual facts we may also notice that he explicitly presents SLOP as a rival to the idea that moral facts can determine the relevance of descriptive facts about law practices. He notes, ‘[a]ccording to the Planning Theory, however, moral facts never determine the content of the law. As we saw in connection with the Simple Logic of Planning argument of the last chapter, the content of plans cannot be determined by facts whose very existence the plans are supposed to settle. Since laws are plans that are supposed to settle moral questions, moral facts cannot be grounds of law.’288 This may be better 286 Plunkett makes a cursory reference to Shapiro’s use of this term and tries instead to gauge out the social fact thesis as a conceptual thesis by breaking down Shapiro’s argument into four conceptual propositions: (i) legal institutions are planning organizations of a certain specified kind, (ii) legal norms are norms that are produced by or endorsed by legal institutions in a particular way, (iii) legal content is equivalent to a set of shared plans, and (iv) the content of plans rests on social facts alone. (see ‘A Positivist Route for Explaining How Facts Make Law’, p. 199). 287 Whereas I take Shapiro’s purportedly conceptual claim about the logic of planning as a figuring in a metaphysical explanation of why social facts ground legal facts, Plunkett leaves it an open question whether the role of these conceptual facts is metaphysical or epistemic. Revealingly, he notes ‘[t]his is not to say that these conceptual facts ground the fact that such-and-such facts ground the legal facts. Rather, it is to claim that grasping the conceptual facts (in cases of revelatory concepts) can help us gain epistemic access to such facts about ground and thereby make intelligible what needs to be made intelligible on the rational-relation requirement.’ (ibid, p. 186). 288 S. Shapiro, Legality, supra note 29, p. 302. 368 portrayed by a figure that is structurally similar to the one associated with the reconstruction of Greenberg’s normative version of trialism: Grounding Fact Legal Fact The fact that a plan to φ in S exists is grounded in the fact that it is authorized by the shared acceptance of S’s Master A plan of S to the Plan effect that φ-ing is Autonomous or Basic Fact required exists The existence and content of a plan cannot be determined by facts whose existence the plan aims to settle. In what remains I will try to offer a sketchy picture of how Raz’s account of exclusive legal positivism could feature in a similar episode of metajurisprudential disagreement about the nature of legal grounding. Unfortunately, there is no solid textual evidence as to how Raz would prefer to deploy the terms of his participation in such a dispute. This is not because he would in principle object to the relevance of metatheoretical disagreement about law but mainly because his comments on the nature of legal grounding are explanatorily subordinate to his account of the authoritative production of legal norms. In other words, it seems unlikely that Raz would like to add anything more about the grounding of legal facts in social facts beyond his claim that facts about the existence of legal norms are grounded in facts about the exercise of legal authority. As we already 369 noticed in the section about the relevance of the notion of legal constitution for Raz’s concept of a legal directive, his core idea—as I tried to regiment it —is that legal claims are claims about the constitution of legal norms by authoritative directives. These are claims about the relation between a non- legal (authoritative directive) and a legal (valid legal norm) abstract object. The same claim could also be reconfigured in terms of facts about the existence of legal norms and facts about the existence or issuance of an authoritative directive. In this regard, instead of talking about the constitution of legal facts by authoritative facts it is conceptually more accurate to talk about the grounding of facts about the existence of legal norms in facts about the issuance of authoritative directives. What is interesting in this case is that Raz’s account would most likely welcome the hypothesis that this particular instance of grounding seems to inherit a property that is peculiar to relations of material of abstract constitution. I will adopt Karen Bennett’s use of the term ‘determinative’ in describing a cluster of relations that do not seem to unify or gather together a multiplicity as in the case of composition. Bennett includes constitution in this cluster of ‘building’ relations noting that ‘[S]ome of the relations seem to involve a certain kind of wrapping up into one, and others do not. That is, some unify, or gather together a multiplicity, in a way that others do not. This is a difference in logical form: some of the relations are many-one, and others are not. Composition, for example, pulls several smaller things together to make a single larger thing. 370 Similarly for microbased determination, the process by which properties of a thing’s parts come together to determine the properties of the whole. But realization and constitution—one–one relations both—do not do this. They are determinative rather than aggregative; there is little sense of ‘bringing together’ involved.’289 What would it mean then to say that the way in which an authoritative directive is related to a legal norm is (among other things) determinative. It would certainly mean that legal norms to not have parts of authoritative directives as their parts. This seems a natural precisification of what it is for an abstract object to constitute another abstract object. But this is not the most salient feature of this relation instance. My suggestion is that would could associate the determinative aspect of abstract constitution with what Mark Greenberg refers to as the explanatory directness by which authoritative pronouncements constitute legal norms. Greenberg take sthis idea to be a constitutive element of what he calls the Standard Picture of legal content which he more or less associates with traditional positivist accounts of law-making. According to Greenberg this idea can be unpacked as follows: ‘[T]here are no explanatory intermediaries between the authoritative pronouncement’s being made and the norm’s obtaining… An explanatory intermediary between A and B is something that a) is explained (at least in part) by A; and b) explains (at least in part) B. Therefore, to say that the 289 K. Bennett, ‘Construction Area (no hard hat required)’ in Philosophical Studies (2011) 154 (1): 79-104, at 86. 371 making of an authoritative pronouncement explains a norm’s legal validity without explanatory intermediaries is to say that the making of an authoritative pronouncement explains a norm’s legal validity, and that it does so not by explaining something else, which then explains the norm’s legal validity.’290 Greenberg is careful to distinguish between the explanation of legal authority itself and the fact that the product of its exercise can by itself directly explain the obtaining of a legal norm. As he notes, ‘the fact that authoritativeness itself can be explained in no way introduces an explanatory intermediary between the authoritativeness of a pronouncement and its impact on the law. (The explanation of authoritativeness is by definition upstream of the pronouncement’s authoritativeness.)’291 With these conceptual clarifications in mind we may easily diagnose the connection between Greenberg’s attribution of explanatory directness to standard positivist accounts292 and what would 290 M. Greenberg, ‘The Standard Picture and Its Discontents’, supra note 15, p. 44. 291 Ibid, p. 45. 292 This means to exclude Shapiro’s planning account of law. As Greenberg himself acknowledges, Shapiro’s account of legal content does not seem to take on board the thesis that the pronouncements of a planning authority constitute the content of ‘legal’ plans without explanatory intermediaries. It should be noted that this is not a counter-indication to my attribution to Shapiro of the idea that the rational requirements bearing upon legal officials constitute ‘legal’ plans. The reason is that in my version of the constitutive relation in work it is not authoritative pronouncements but wide-scope requirements of planning rationality that constitute the content of specific ‘legal plans’. Whereas the latter do seem to operate as direct explanations of the content of ‘legal’ plans, they do not also operate as the grounds of the existence of particular plans. The latter fact (about the existence of a plan) can only be explained but an equally contingent fact, rather than a rational necessity. 372 amount to a wholesale acceptance of Collapse. As we may recall, both the iterated ground approach and the trialist approach to grounding explanations aim by design to escape the problem of Collapse. This is a problem that emerges as soon as we take grounding claims to be claims to the effect that reality has a layered structure. In the present case this could represented in the following way: suppose that [existence of legal norm] is immediately grounded in [existence of authoritative directive]; construed as a claim about what is more fundamental than what [existence of authoritative directive] is more fundamental than [existence of legal norm]. By virtue of the claim about fundamentality, the fact that [existence of legal norm] is grounded in [existence of authoritative directive] is also fundamental. But if that is the case then [existence of legal norm] will figure in any complete description of the more fundamental layer such that all layers collapse into one. The upshot of this association is that Raz’s hypothetical participation in a disagreement about the nature of legal grounding would lead him to bear the brunt of explaining away Collapse. This is not a hopeless task so long as one is willing to argue against a basic premise of the Collapse argument which is that there are fundamental facts in the sense that there are facts that are not explained by any other fact. This is not an orthodoxy in metaphysics as evidenced by recent work in the notion of fundamentality. A In Shapiro’s case we saw that this is a fact about the shared acceptance of an authorizing master plan which, as we just saw, does not directly explain the existence of a plan but by virtue of its combination with conceptual truths about the logic of planning. 373 major contributor to this alternative way of thinking about existence and fundamentality is Jonathan Schaffer whose view about the possibility of drawing an infinite descending hierarchy of levels of reality does not seem to necessitate the existence of a fundamental level. Rather, as he notes, there is no solid evidence in favor of this view and for that reason he invites us to consider the possibility that all entities are equally real.293 This is not an unpalatable assumption but I would also hesitate to even hypothetically associate Raz’s ontological commitments with such a concrete position. At any rate it is worth noting that there is a way to engage a proponent of the Standard Picture in second-order disputes about the nature of legal grounding without unfairly exposing her to the charge of being incapable of escaping the Collapse. 293 Jonathan Schaffer, ‘Is There a Fundamental Level’ in Noûs (2003) 37 (3): 498-517. 374 CHAPTER V A Dispositional Route for Explaining How Facts Make Law In this last chapter of the first part I will try to provide the first half of an outline of an alternative route for explaining how descriptive facts about the sayings and doings of people involved in the production of legal content can change the metaphysical landscape. By the end of the second part I will provide the second half of this outline by explaining how the same array of 375 facts about law practices can also change the normative landscape. The distinction I am drawing here between two landscapes, a metaphysical and a normative one, is more illustrative than constitutive. The reason is that the same facts that will be taken as the metaphysical contribution of law practices will also be the facts that will be taken to be normatively relevant for generating a certain kind of requirements. Moreover, supposing that normative facts exist alongside the inventory of descriptive facts about the world, the economy of philosophical ideas would not be promoted by locating two stages in which law practices change the world, one regarding the domain of descriptive facts and one regarding the domain of normative facts. That being said I would like to preface this chapter by dwelling a bit more on how I tend to see the relation between the metaphysical and the normative implications of the practice of law. An illustrative way to clarify my vision is to begin with excluding some familiar conceptualizations of this divide. What I definitely reject is an understanding of this divide in terms of another primordial distinction between what the law is and what the law should be. Literally speaking, the latter distinction is a much narrower methodological position that does not overlap with the explanatory span of the former division. For instance, one can take up this position within the domain of legal metaphysics in an attempt to disassociate moral facts from 376 the “real” determinants of legal content. Likewise, the same distinction may resurface within the domain of legal normativity in order to defend the position that law is only prudentially normative. At any rate it remains an obscure division that falls short of doing some joint-carving work. Another candidate division which I will also omit is between facts about legal content and a general fact about the duty to obey the law. By the lights of this distinction legal facts proper do not “drive” the explanation of why we have a compelling reason to obey a particular law. In other words, it is the fact that there is a general moral obligation to obey the law that provides a reason to comply with a particular legal requirement rather than the piecemeal fact that it is legally obligatory to act thus and so. A last distinction which I will finally adopt is between the grounds of facts about legal content and the grounds of normative facts about legal content. The idea is that whereas it is the same fact about legal content that also operates as a normative requirement, the grounds for explaining the obtaining of the fact itself and the grounds for explaining the fact that this fact about legal content is normatively relevant do not overlap. In what follows, I will take up the first question about grounding leaving the last one for the second part of the thesis. As it will be evidenced by the ensuing text the beginning of this chapter is marked by some awkwardness. 377 There are two reasons for this impression. The first one hails from how I have deployed so far my argument in favor of treating legal facts as ontologically dispensable. As early as in the first chapter of this part I disclosed my intention to prepare the ground for enabling philosophical disagreement about law to feature facts that make legal propositions true but are not themselves legal facts. On the other hand I cannot kick-start an exposition of my own contribution to the debate without conveying the impression that I am being stipulative about the use of my preferred concepts. This is even more so precisely because the concepts I want to employ are not part of the established jurisprudential jargon. This is not a serious problem so long as my reader is patient enough to see how I will try to connect the dots towards the end of this chapter. For now it will suffice to explain how I intend to structure this chapter. There will be two main sections. In a first step I will try to deploy the vocabulary and the relations between the concepts I intend to use with a view to animating the departure from the language I have been using so far. More precisely, I will try to unpack what exactly I intend to convey by using the concept of enforceability as a benchmark in my argument. This will include a little bit more than explaining how dispositions are supposed to work. In particular I shall supplement this brief digression into the language 378 and mechanics of dispositions with a short explanation of what has led me to explore the option of grounding the truth of claims about legal norms in dispositional facts. The next section will feature a rather long argument about the transition from a conventional reference to enforceability to a more canonical treatment of this concept. This part will bear the brunt of my effort to erect a bridge between my talk about enforceable obligations and my account of law as a practice of trust validation. Hopefully my prose will unwind more naturally as I will try to capitalize on my bridging argument in order to account for what grounds facts about enforceable obligations and rights. V.1. From Nomic Language to Dispositional Facts 379 From the very beginning of this part I did not hesitate to imbue my narrative with a leitmotiv about the ontological dispensability of legal facts. The turning point that licensed this bold claim was a distinction I ever since tried to defend between legal propositions and their truthmakers. The idea has been that it is perfectly legitimate to insist in the veridicality of our discourse about legal content without being subdued by the weight of an ontological commitment to legal facts. At first approximation my recalcitrance to legal facts might have justified the impression that it is more idiosyncratic than a reaction to an actual stimulus. By the time I reached the point of having proposed an alternative regimentation of the logical form of legal propositions the reasons of my resistance should have hopefully become more accessible. If they haven’t already become 380 fathomable this is partly due to a delay of my argumentative prose to flag the issue by engaging more frequently in signposting my ideas. In what follows I will seize a last chance to voice my objection in the simplest way possible. The basic thought behind my preannounced intention to replace talk of legal facts with talk of facts about enforceable obligations or rights resides in the theoretical aftermath of understanding legal claims in constitutive terms. What was thus far a latent suspicion about the ease of switching talks between legal propositions and legal facts became a more solid indication that we should consider turning on the ontological razor. The reason is not simply that the ontological implications of constitutive claims, if taken literally, can make metaphysical modesty an irrelevant virtue. Fortunately, there are available theories that purport to deflate the apparent ambition of claims about the existence of constituted material objects.294 What is more disconcerting in our case is something about the very notion of abstract constitution, namely, the idea that abstract objects like legal norms or musical works can be created. The Creativity Paradox as I intend to refer to the problem follows from the apparent joint inconsistency of three propositions295: (i) Legal norms are created 294 Cf. Amie L. Thomasson, Ordinary Objects, Oxford: Oxford University Press, 2007. 295 I owe this line of reasoning to Ross Cameron. For a full exposition of his argument see his ‘There Are No Things That Are Musical Works’ in British Journal of Aesthetics 48(3): 295-314. 381 (ii) Legal norms are abstract objects (iii) Abstract objects cannot be created Viewed individually each proposition seems to report a platitude about different aspects of referring to abstract objects and their relational properties. The problem arises as soon as we try to defend them as a triad. Whereas it is fairly intuitive that like composers law-makers do not just draw our attention to what is already there but rather bring something into existence, there is a very strong objection to pressing the claim that legal norms can literally be constituted by non-legal entities. What if they were concrete objects? This would amount to the absurd conclusion that legal norms just are the pieces of paper or digital files (in our progressed era) wherein some information is carried. Could they perhaps be mental entities like thoughts? The answer again will be negative for an array of reasons. First off, some aspects of the thoughts of legal officials are standardly taken 382 to figure in the determinants of legal content rather than just be legally valid entities. Moreover, legal thoughts, if we may say so, are just not the sort of thing that can be enforced or invoked in a courtroom. A last option would be to ask if legal norms could just be the infinite sum of their applications the latter being descriptive facts about what people do or are forced to do that can somehow be traced back to a general pattern. This is perhaps a position closer to the reality of jurisprudential debate at least for those who favor the reductive metaphysics of legal realism. Unfortunately, I do not have the luxury of space to engage in a critical discussion of the metaphysical commitments of legal realism but a short comment would be that there is still some grain of truth in the thought that actual instances of conformity, exercise of rights or enforcement are not just a heap of events but instantiations of something that supervenes thereupon. With regard to the creativity claim as such it might be objected that acts of creation are causative acts relating things that can stand in causal relations to other things. Since abstract object are commonly regarded as causally inefficacious or inert it is fair to conclude that they cannot be created and hence that if it is true at any time that an abstract object a exists, then it is true at all times that a exists. This last objection can be perhaps resisted much more easily than the other two. For instance, one could claim that at least with regard to abstract objects like legal norms it is possible to regard them not as causally but as normatively efficacious. This is a plausible answer but the problem remains when we are asked to explain 383 the interaction between legal norms and their creators. It seems that even by the lights of the staunchest positivist the creative process she would have in mind would not feature legal officials as concrete persons standing in a direct normative relation to legal norms. What is more likely is that either their official capacity or aspects of what they do, say or think will stand in some sort of normative relation to legal content but this is not even close to putting the aspect of creation into the picture. My response to the apparent tension between creativity and endurance on the one hand and creativity and abstractness on the other hand is to reconsider the plausibility of the truthmaker view of ontological commitment according to which a theory is ontologically committed to the entities needed in the world for the propositions expressed by the sentences of that theory to be made true. If the constituents of the facts that make a proposition true—i.e. the truthmaking facts—need not be isomorphic to the constituents of the proposition itself, two important consequences follow: first, what our theory commits us to ontologically may not be pictured in what we represent as being true, and, second, the more fundamental facts— in our case, social and/or normative facts—that will operate as the grounds of the truthmaking facts may be radically different in terms of their constituents vis-à-vis the grounds that would be postulated had we embraced an isomorphism between propositional content and truthmakers. In more concrete terms, the idea is that instead of trying to adjust the world to the fine-grained structure of our representations we may consider trying 384 to allow the more coarse blocks of reality to save the veridicality of our discourse. It is precisely at this point that the idea of connecting the nomic- constitutive talk about the constitution of legal norms with the discourse about dispositions arose in my mind. It bears emphasizing of course that this is not a novel idea but an analogical application of a theory that seems to be gaining momentum in the debate about the metaphysics of laws of nature. Moreover, precisely because this is an argument by analogy I carry the burden of being extremely careful about the scope I intend to give to this analogy. There are two basic reasons that alert me of the importance of applying this caution. The first and most obvious one is that the vast majority of dispositional concepts take natural properties or kinds as their referents, whereas my appeal to enforceable obligations purports to welcome dispositional thought into the domain of normative properties and relations. A second, less obvious reason is that the prevalent association of dispositions with (statements of) laws of nature takes the former to be essentially had by some properties or universals. By sharp contrast, I will be treating enforceability as an extrinsic property of normative states of affairs like obligations, privileges, powers or immunities in the sense that there can be exact duplicates of these states of affairs without legality entering the picture under the guise of enforceability. The latter phenomenon is more or less connected with the contingency of the activity of social practices which endows different kinds of thing with roles or normative statuses of which 385 they are not intrinsically possessed. In other words, much in the same way that a given piece of wood does not bear intrinsically the property of being the Queen in the game of chess, particular sayings and doings of people who happen to be residing in a building that happens to be called a parliament do not necessarily make a normative or metaphysical difference. With these qualifications in mind I would like to briefly refer to the original dispositional account that has inspired my current work. This is view is commonly identified as dispositional essentialism. The idea roughly is that at least some properties have dispositional essences. This position is most strongly associated with constitutive accounts of sparse properties, namely, properties that, as Jonathan Schaffer puts it, ‘carve out the joints of nature on which causal powers hinge’.296 In a display of suspicion about the traditional view of categoricalism that holds that the essence of a property is independent of what its instances are disposed to do under different circumstances, philosophers like Alexander Bird,297 Brian Ellis298 and Stephen Mumford299 have developed different dispositional projects all 296 Jonathan Schaffer, ‘Two Conceptions of Sparse Properties’ in Pacific Philosophical Quarterly (2004) 85 (1): 92-102, at 92. The ontological counterpart of sparse properties is the concept of an abundant property which more or less corresponds to the plurality of meaningful predicates like the property of going to school or being married. The distinction has been first introduced by David Lewis; see his On the Plurality of Worlds, Oxford: Basil Blackwell, 1986; see also David Armstrong, A Theory of Universals, Cambridge: Cambridge University Press, 1979. 297 Alexander Bird, ‘The Dispositionalist Conception of Laws’ in Foundations of Science (2005)10: 353–370. 298 Brian Ellis, Scientific Essentialism, Cambridge: Cambridge University Press, 2001. 299 Stephen Mumford, Laws in Nature, New York: Routledge, 2004. 386 converging in their espousal of the frugality of scientific realism. Despite their substantive differences all dispositionalist theories share the view that the essence of a property P is fully determined by the theoretical, that is, nomic or causal, roles it plays. These roles in turn determine the way in which the instances of a given property are disposed to respond under various circumstances. Thus the basic intuition behind the dispositionalist view is that it is in virtue of the causal or nomic powers or dispositions of its instances that the essence of a given (sparse) property is constituted. This is a full-fledged metaphysical claim and not an epistemic claim to the effect that the nomic or causal powers of a property make its essence intelligible. For instance, supposing that the property of being negatively charged is essentially such that it is disposed to attract positively charged particles and repel negatively charged particles, all negatively charged objects must be thus disposed. On this picture the properties of being negatively and positively charged do not figure in statements of Coulomb’s law but are what makes these statements necessarily true. Dispositional theorists of various bents appeal to the versatility of the concept of a disposition in order to address a series of problems in philosophy of science such as the necessity of laws of nature, the violability or ceteris paribus character of some laws of the inexact sciences as well as the metaphysical grounding of nomic claims. Before I move to the much less aspirational legal side of my analogy I would like to unveil the intuition behind the distinction between the 387 veridicality of nomic discourse and the postulation of nomic facts. This spirit of this distinction is what also informs my local distinction between the veridicality of legal discourse and the postulation of legal facts. There are many allusions in the work of dispositional theorists that emphasize the distinction between statements or propositions about laws of nature and their truthmakers. Reasons of space allow me to cite only two basic hints. Take for instance Mumford’s eliminativist account of laws of nature. His account only reserves space for statements of laws of nature but not laws of nature themselves. He writes, ‘[a]ny laws, worthy of the name, would be things in the world – in non-linguistic reality – rather than a class of statements. There are certainly law statements, some of which may be capable of truth, but it is the thing in the world – that which would make true law statements true, in truthmaker theory – that is the focus of this study. Laws in nature would be the metaphysically real, worldly truthmakers of the true law statements. While people and their languages are certainly part of the natural world, the search is for laws that are what they are whatever we may think about them.’300 In a less categorical tone, Alexander Bird is willing to preserve a loose explanatory role for laws of nature by allowing them to supervene upon dispositional essences. In his words, ‘the dispositional essentialist view will regard the motor and cement of the universe as residing ultimately not in the laws themselves but rather in the dispositional nature of properties. The laws are, in a sense, 300 Ibid p. 9. 388 epiphenomenal.’301 At the same time, he seems to also hold the view that facts about dispositional essences are the proper truthmakers of nomic statements when he notes that people ‘willing to regard a proposition as asserting a law if, as far as they then know, the proposition correctly states a general and non-accidental relationship among properties (including quantities), where that relationship plays a fundamental, explanatory role in the relevant scientific domain. That investigation of usage reveals that there is a unity to the concept of law, but it cannot tell us what the underlying metaphysics of laws is. That is what the defence of the dispositional essentialist view is supposed to achieve. A full account of what laws are should identify the underlying metaphysics while satisfying, fairly closely at least, the concept of law as revealed by its use.’302 At the same time, many philosophers of science recognize a conceptual similarity between nomic laws and normative laws (moral or legal). The spectrum of associations ranges from merely metaphorical correlations to more literal applications of concepts used in normative philosophy. On the latter side of the spectrum there figures E.J. Lowe’s prescriptivist account of laws of nature303 according to which statements of natural laws share modal features with normative laws like legal norms or moral principles such that it is possible to claim that statements of laws of nature are made 301 Alexander Bird, Nature's Metaphysics: Laws and Properties, Oxford: Oxford University Press, 2007, p. 47. 302 Ibid, p. 203. 303 E.J. Lowe, ‘Miracles and Laws of Nature’ in Religious Studies (1987) 23: 263–78. 389 true by some sort of natural normative facts. Lowe’s account is heavily premised on a fusion of the properties of normality and normativity by virtue of which he proceeds to suggest a generic semantics for statements of laws of nature.304 Fred Dretske also embellishes his own version of nomic necessitation305 with a fair amount of parallelism between natural laws and legal norms. In particular, he locates an analogy between universals as the relata in the relation of nomic necessitation and legal offices. In his words, ‘[i]n matters pertaining to the offices, branches and agencies of government the "can" and "cannot" generated by laws are, of course, legal in character. Nevertheless, I think the analogy revealing. Natural laws may be thought of as a set of relationships that exist between the various "offices" that objects 304 For a charitable critique of Lowe’s strategy see S. Mumford, ‘Normative and Natural Laws’ in Philosophy (2000) 75 (2): 265-282. 305 This is more like a cluster of view orbiting around ‘nomic necessitation’ as the central concept. Jointly enriched by David Armstrong, Fred Dretske, and Michael Tooley this view of takes nomic statements to be made true by facts about the relation between universals. On Armstrong’s formulation of the view, the identification of causal necessitation with nomic necessitation is necessary, but a posteriori. He invites us to suppose that it is a law that Fs are Gs. Then it follows that ‘F-ness and G-ness are taken to be universals. A certain relation, a relation of non-logical or contingent necessitation, holds between F-ness and G- ness. This state of affairs may be symbolized as ‘N(F,G)’’(D. Armstrong, What Is a Law of Nature?, Cambridge: Cambridge University Press, 1983, p. 85). In this regard we could say that the universalist account of laws of nature purports to preserve the isomorphic similarity between statements of laws of nature and their truthmakers. Another view that has the same consequence is Marc Lange’s non-reductivism about natural laws. Lange treatment includes an account of what it is to be a law in terms of a counterfactual notion of stability. On this view statements about laws of nature or subnomic statements about instabces of these laws are made true by subjunctive facts displaying a certain degree of stability; see his M. Lange, Marc Lange, Laws and Lawmakers: Science, Metaphysics, and the Laws of Nature, Oxford: Oxford University Press, 2009. 390 sometimes occupy. Once an object occupies such an office, its activities are constrained by the set of relations connecting that office to other offices and agencies; it must do some things, and it cannot do other things. In both the legal and the natural context the modality at level n is generated by the set of relationships existing between the entities at level n+1.’306 The reality of the philosophical discussion about dispositions and laws of nature is revealing in a Janus-like fashion. On the one hand, there are there are views that assign a grounding role to dispositional facts but retain a feeble status of existence for laws of nature as such. On the same side but in reaction to the dispositional analysis there are views that take nomic statements not only to be literally true but also made true by facts about nomic necessitation or subjunctive facts. On the other hand, there are more radial views that leave intact the veridicality of nomic language but move on to defend a metaphysical theory that makes no use of nomic concepts or properties. Again the concept of a disposition is prominent in accounts of this sort. Moreover, we have reasons to feel less than awkward when we locate a series of interesting similarities between nomic and legal concepts. V.2. The Case of Enforceability These remarks do not have a demonstrative function as it would be more than naïve to assume that the plausibility of an account of dispositional 306 Fred I. Dretske, ‘Laws of Nature’ in Philosophy of Science (1977) 44 (2): 248-68, at 265. 391 truthmakers for nomic statements provides direct evidence in favor of the view that legal statements are also made true by dispositional facts. The utility I would to associate with these remarks is merely illustrative mainly because they serve to animate the intuitions behind my argument. In what follows, I will provide a more concise account of how I intend to use the concept of enforceability without directly availing myself of the supportive views developed in the domain of general metaphysics. More precisely, I will first provide some very basic vocabulary whose use will be recurring throughout this chapter. Secondly, I will try to flesh out the intuition behind choosing enforceability as the disposition that can accomplish the metaphysical task that facts about the existence of legal norms cannot deliver. Thirdly, I will caution against associating my account of enforceability with a probabilistic conception of the same disposition. Finally, I will try to provide the structure of the concept in pictorial terms in the hope that I will facilitate my reader in her departure from the more familiar jurisprudential vocabulary I have been thus far working with. Analyses of dispositions are usually cast in terms of counterfactual conditionals.307 A typical regimentation of dispositional claims is formulated by a sentence of the form ‘an object O is disposed to M when C iff it would 307 The idea is not that every dispositional statement is a priori equivalent to the obtaining of a particular counterfactual fact. Rather the case is that every disposition can be typically associated with the truth of a certain counterfactual. A Elizabeth Prior remarks, ‘[w]hat is commonly accepted by all those who discuss dispositions is that there exists a conceptual connection between a statement attributing a disposition to an item and a particular conditional’ (E. Prior, Dispositions, Aberdeen: Aberdeen University Press, 1985, p. 5). 392 M if it were the case that ‘C. For the moment I will leave aside an array of counterexamples to the tenability of this simple formula and focus instead on some basic notions accompanying the concept of a disposition. In the above provisional definition M will stand for a disposition’s manifestations, namely, the class of events that serve as instances of the property which is dispositionally borne by an object or another property. These events will normally occur in the presence of a certain kind of stimulus which serves to trigger the causal process by which a given object will manifest a specific property. For example, a fragile vase would break (manifestation) if struck (stimulus) or an irascible man would behave aggressively (manifestation) if slightly provoked (stimulus). This simple analysis proceeds on the assumption that, for any disposition, we can identify its stimulus conditions and manifestations. Moreover, it is commonly believed that at least non-fundamental dispositions, that is to say, dispositions that do not by themselves ground natural laws or make nomic statements true, are themselves grounded in other categorical or dispositional facts. In the scientific-philosophical jargon the terms that are used to describe these grounds are ‘causal basis’. In simple terms, the causal basis that grounds the fact that an object O has the disposition D is usually something about O’s intrinsic microstructural properties that is or would be causally responsible for the manifestation of 393 that disposition.308 In other words, besides the necessary triggering by a stimulus causal bases can serve as the operative sufficient conditions for the manifestation of a disposition. In Prior, Pargetter & Jackson’s seminal article on dispositions the concept of a causal basis is defined as follows: ‘[a] causal basis for disposition D is the property or property-complex that, together with the characteristic stimulus of D, is a causally operative sufficient condition for the characteristic manifestation of D in the case of 308 There are at least three issues that arise with regard to the notion of a causal basis. The first question is whether there can exist groundless or bare dispositions that lack any causal basis. A second question is whether the properties that figure in the causal basis of a disposition must be categorical or whether they can themselves also be dispositions. Finally, a third question is about the nature of the relation between dispositions, their causal bases and their manifestations. These questions are so complex that can serve as the topics of an independent entry. That being said I will confine myself to a few remarks that may prove relevant for the way I intend to apply the concept of enforceability. With regard to the first question, it bears emphasizing that despite that fact that it remains highly disputed it does not seem to affect a wide agreement on the fact that at least some dispositions must have causal bases. With regard to the second question there seem to be three basic views about the relation between dispositions and their causal bases. One view defended mainly by David Armstrong is that dispositions are identical with their causal bases (see D.M. Armstrong, C.B. Martin and U.T. Place (eds.), Dispositions: A Debate, London: Routledge, 1996, pp. 33-48). The idea is that since dispositions are by definition properties that play certain causal roles, and since in fact their causal bases are what play those roles, it follows that dispositions are in fact identical with their causal bases. Moreover, Stephen Mumford defends the alternative view that any instance of a disposition is identical with an instance of its causal basis (see his Dispositions, Oxford: Oxford University Press, 1998, pp. 93-117), whereas Elizabeth Prior, Robert Pargetter and Frank Jackson hold a functionalist view according to which a disposition is a second-order property of having some causal basis or other (‘see their ‘Three Theses about Dispositions’ in American Philosophical Quarterly (1982) 19: 251–57, at 253-55). 394 “surefire” dispositions, and in the case of probabilistic dispositions is causally sufficient for the relevant chance of the manifestation.’309 With this rudimentary vocabulary at hand I feel like being in a better position to confront a pair of long-anticipated questions: why have I chosen to resort to the arsenal of dispositions to account for the truth of legal claims and, consequently, why have I singled out enforceability as the disposition that can carry out this metaphysical task. With regard to the first question my answer is straightforward. My choice is motivated by the belief that dispositions are an ontologically modest solution to the problem of accounting for the defeasible practical necessity associated with legal content. On the one hand, legal content is vested with normative vocabulary suggesting that legal practice purports to govern its instances rather than systematize the history of past instances of compliance. More precisely, it seems that law’s instances are not causal sequences of events but sequences of actions that are at least represented as being sensitive to normative standards. At the same time law could not perform its governing role if general legal requirements merely supervened on the totality of its instances. I believe that many would welcome the possibility that law adds something to our society such that the world would be observably different —and as I shall add further downstream, normatively worse—in its absence. A dispositional account of the governing aspiration conveyed by claims of 309 E. Prior, R. Pargetter and F. Jackson, ‘Three Theses about Dispositions’, supra note 15, at 251. 395 legal content can provide an explanation of the fact that law is not just a social regularity without unloading on our shoulders the weight of an ontological commitment to a peculiarly legal class of universal facts. At the same time the same account can elucidate the sense in which legal “laws” are essentially defeasible while saving us from the worry of refining our models of hedged legal rules. For those whose concerns are still not assuaged I will have to devolve upon them the burden of proving that law is nothing more than an inventory of our history of coincident conduct. With regard to the second question my answer will be more strategic in the sense that despite its uniformity there can be diverse reasons for being intuitively attracted by its appeal. One version of its background is that the concept of enforceability already implies a strong commitment to the thesis that law is necessarily coercive. It is needless to say that this is an extremely controversial position in many respects. It is therefore imperative to bring some taxonomical order to the aspects of this controversy before venturing a reply to this question. Reasons of space prevent me from reviewing in detail the extensive literature on the relation between law and coercion. That being said, I venture the hypothesis that the voluminous research in this topic can be broken down into two main strands of thought. The first and most prominent tradition of thought has its origin in the classical utilitarian tradition, especially in the work of John Stuart Mill. The leading idea is that coercion is extrinsic to the wrong it is supposed to address such that its justification must take place on independent grounds 396 of utility. For instance, imprisoning thieves aims to prevent them and others from succumbing (again) to the temptation of stealing. Legal philosophers who espouse the extrinsicality of legal coercion tend to emphasize different aspects of its relevance.310 For instance, Joseph Raz invokes the possibility of a hypothetical society of angelic people for whom sanctions are utterly redundant in order to stress the peripheral role of coercion in law.311 H.L.A. Hart’s elucidation of the gunman situation also serves to highlight the ancillary role of coercion in backing the normative force of legal obligations. In his words, ‘the typical form of legal pressure [supporting legal obligation] may very well be said to consist in such threats [of physical punishment or unpleasant consequences]’.312 A competing view takes coercion to be intrinsic to law. This general approach permits four lines of argumentation, 310 I am also inclined to classify under this theoretical strand William Edmundson’s deflationary account of the relevance of coercion for law. According to Edmundson a moral baseline theory of legal sanctions leaves no space for the ontology of ‘justified coercion’. What an external observe might identify as uses of coercive practices the uses of what are normally thought of as coercive techniques are not coercive in the justification-demanding sense (moral baseline) if their legal grounds make them pro tanto rightful responses. In Edmundson’s words, ‘[i]f locating coercion in the world involves a preliminary drawing of moral baselines, then coerciveness in the justification-demanding sense can no longer be viewed as a cold and neutral descriptive attribute of the state… The presumptive wrongness of the state and its activities can no longer be taken as given by its descriptive coerciveness. Moreover, depending upon what emerges as the best theory of moral baselines, it may turn out that the rule of law is not coercive, and thus not pro tanto wrongful’ (in W.A. Edmundson, ‘Coercion’ in Andrei Marmor (ed.), The Routledge Companion to Philosophy of Law, New York: Routledge, 2012, pp. 451-66, at 460). See also his William A. Edmundson, ‘Is Law Coercive?’ in Legal Theory (1995) 1: 81–111. 311 J. Raz, Practical Reason and Norms, (with a new postscript) Oxford: Oxford University Press, 1999, p. 159. For a similar approach see Robert C. Hughes, ‘Law and Coercion’ in Philosophy Compass (2013) 8 (3): 231-40. 397 one descriptive and three normative. The descriptive line dates back to John Austin’s imperatival or sanction theory of law according to which statements or legal obligation just are predictions about the likelihood of carrying out the sovereign’s threats.313 The second normative line submits that coercion is intrinsic to the wrong that it is supposed to address. This is a distinctly Kantian view that sees coercive enforcement as one way (along with instances of lawful exercise) of realizing—or more precisely upholding or restoring the normative status of—our rights. Coercion just is a way of undoing the normative effect of a wrongful act.314 The third normative line takes coercion to be intrinsic to rights themselves (rather than their violations) such that instances of both actual and prospective coercive enforcement trigger a principle of equal distribution of the benefits and costs of political decisions among members of a political community.315 Finally, another line suggests that coercion is not intrinsic either to the 312 H.LA. Hart, The Concept of Law, Oxford: Clarendon Press, 1961, 2nd edition with postscript by J. Raz & P. Bulloch (eds.), Oxford: Oxford University Press, 1994, p. 180. 313 Cf. his seminal The Province of Jurisprudence Determined (1832), W. Rumble (ed.), Cambridge: Cambridge University Press, 1995. For a Neo-Austinian account of the role of sanctions and the use of force in law see Frederick Schauer, ‘Was Austin Rights After All? On the Role of Sanctions in a Theory of Law’ in Ratio Juris (2010) 23 (1): 1-21. For a non- reductive, yet descriptive account of the intrinsicality of legal coercion see Ekow N. Yankah, ‘The Force of Law: The Role of Coercion in Legal Norms’ in University of Richmond Law Review (2008) 42 (5): 1195-255. 314 For this approach cf. Arthur Ripstein, ‘Authority and Coercion’ in Philosophy & Public Affairs (2004) 32 (1): 2-35. 315 For this approach cf. Ronald Dworkin, Law’s Empire., Cambridge, MA: Belknap Press, 1986, pp. 153 ff. and Nicos Stavropoulos, ‘The Relevance of Coercion: Some Preliminaries’ in Ratio Juris (2009) 22 (3): 339-58. 398 wrong or the right but rather it is an intrinsic aspect of legal authority itself. Grant Lamond summarizes this view in the claim that the coerciveness of law resides in its claim to a “right to authorize the enforcement of [its subjects duties, responsibilities, etc.]… It is not that legal duties are sanction-based, nor that every law must ultimately be linked to coercive measures, but that law claims the right to back up its directives with force’.316 Against this conceptual background the provisional reply I intend to offer is founded on the observation that all these different approaches converge in their conception that the relation between law and coercion is unmediated in the sense that a positive, negative or qualified answer to the question of their kinship can be provided by clarifying the conceptual and normative properties of the two relata. As I intend to argue in the second part of the thesis of this chapter, this is an unfruitful enterprise mainly because it is neither the case that coercion is an extrinsic solution to a problem about law’s efficacy (rather than its normativity) nor is it the case that law is a solution to the problem of wrongful coercion that makes legal coercion either ontologically dispensable317 or an intrinsic aspect of law. My suggestion will be to entertain the hypothesis that law’s relation to coercion is opaque in the sense that law is not a solution to nor a problem about 316 Grant Lamond, ‘Coercion and the Nature of Law’ in Legal Theory (2001)7 (1): 35–57, at 55. 317 This is the case with William Edmundson’s deflationary argument about the ontology of state coercion; see supra note 17. 399 coercion but a solution to a problem about the relation of coercion to another concept which in the second part of the thesis I will identify with the concept of civic trust. In very general terms this is a problem that emerges in contexts wherein the nature of joint activity that is required is primarily general and cross-temporal rather than particular and synchronic. In such cases it will always be an open question whether we could trust others that in infinitely instantiating a general joint requirement we may not end up acting for reasons that cannot be shared by everyone involved. Jointly acting for reasons that could not be shared by all participants results in an unequal distribution of the burdens and benefits of joint agency, whereas, at the same time, it is practically impossible to rely on the mechanisms of civic trust in order to prevent such instances from happening. It is precisely then that law enters the picture first by inviting our trust that some general joint requirements are indeed supported by agent-neutral reasons and, consequently, by endowing these requirements with the disposition to validate this trust either by way of reaffirming it or by way of restoring it. In anticipation of the bridging argument that I will develop further downstream I will confine myself to a couple of preliminary comments. First off, the problem about the relation between coercion and trust is such that law cannot but safeguard alongside with normative guidance the possibility of coercively restoring their relation. In other words, in the context of infinitely instantiable patterns of joint activity it is inevitable that there will 400 be breaches of trust regardless of whether they are intentional or strategic. Supposing that an angelic society is a society exclusively composed of benevolent, unexceptionally law-abiding beings it will be impossible even for those angelic people to prevent any future occurrence of an unequal distribution of the benefits and burdens of general joint activities. Perhaps, the only case where the example of an angelic society could make the possibility of coercion irrelevant would be if we qualified the same example by describing those beings not just as good-willed but also omniscient. I would then be happy to grant that coercion would indeed be irrelevant but I would accept this defeat by reminding that in such a case also law would be irrelevant. This is so because there would be no need to regulate future conduct under general principles or rules precisely because all future instances of rightful behavior will be anticipated and scheduled to occur when necessary. A second remark regards the question of why instances of conformity with duty or exercise of different types of rights are also manifestations of enforceability rather than merely of obligations or rights respectively. There is an easy and a more difficult answer to this question. The easy reply would be that irrespective of whether someone’s will is not impacted by the prospect of coercive enforcement, the fact that the possibility of coercion is always on the cards enables law’s coerciveness to piggyback on instances of fulfilling a legal duty or exercising a right without interference and so on. The key point here is that what matters for the individuation of acts of 401 conformity or exercise as instances of enforceability is that there is ab initio a power differential between the legal system and the citizen such that the possibility of coercion figures essentially in the justification of one’s duty to act in a particular way or one’s right to act in a particular way.318 The second reply is more difficult because it presupposes some intermediary premises about law’s relation to the relation between coercion and trust. We may assume now for the economy of the discussion that enforceability just is the disposition of obligations and rights to validate trust in the existence of joint requirements supported by agent-neutral reasons. If we translate, as I will suggest, instances of conformity and exercise into instances of trust reaffirmation and trust restoration, a second, deeper explanation emerges as to why these instances are manifestations of enforceability (now understood as trust-validability). The reason is that when citizens themselves validate this special kind of trust by means of their voluntary engagement they remain vulnerable to the possibility of betrayal. This may happen for a variety of reasons. For instance, it may be the case that the particular way they chose to perform a duty or exercise a right turns out to conflict with other people’s duties or rights. Or, it may be the case that a legal requirement is so vague or contradictory that it makes it highly probable that one will fail to act for the right kind of reasons. At any rate, what is relevant here is the inherent vulnerability of law-subjects to the possibility of provisional or more permanent distrust. 318 For this line of defence see Nicos Stavropoulos, ‘The Relevance of Coercion: Some Preliminaries’, supra note 22. 402 In light of these remarks I would like to take a step further in elucidating the use I have reserved for enforceability. First off, enforceability claims its dispositional status on the ground that, like fragility or irascibility, it is not constantly actualized but can be manifested given an appropriate stimulus. In what follows, I will provisionally identify in broadly descriptive rather than constitutive terms the nature of the manifestations and stimuli of enforceability on the basis of its conventional usage. By the end of the next section I will be in a position to replace this provisional vocabulary with the conceptual tools provided by the canonical definition I aim to defend. For now it will suffice to say, that this canonical definition will be an analysis of the concept of enforceability as the disposition of obligations or rights to validate trust that a particular course of action or its omission is jointly required. With this caveat in mind, I would like to exclude from the beginning an account of enforceability that cannot do the explanatory work I have envisaged for this concept. This would roughly be a probabilistic conception of enforceability according to which to say that X is enforceable is to say that if A doesn’t X, A will be forced to X. On this view enforceability is a probabilistic disposition borne by different sorts of act-types that serves to systematize patterns of official behavior (enforcements agencies, courts, administration) on the causal basis of probabilistic facts about the operation of a particular legal system. The main reason for rejecting this version is that the type of enforceability I have in mind is a dispositional property of normative entities 403 like obligations or rights and not of agential states of affairs. This is a crucial distinction as evidenced by H.L.A. Hart’s famous ‘gunman situation’ whereby he likens John Austin’s sanction-based theory of law to the role of a gunman in a bank who orders the bank clerk to hand over the money and threatens to shoot if he refuses. As Hart observes, ‘if the victim complies we refer to the way in which he was forced to do so by saying that he was obliged to do so. To some it has seemed clear that in this situation where one person gives another an order backed by threats, and, in this sense of 'oblige ' , obliges him to comply, we have the essence of law, or at least 'the key to the science of jurisprudence'.319 His reaction to the use of ‘oblige’ is to juxtapose it with the predicate ‘obligate’ noting that there is a qualitative difference between these two notions mainly due to the fact that ‘where rules exist, deviations from them are not merely grounds for a prediction that hostile reactions will follow or that a court will apply sanctions to those who break them, but are also a reason or justification for such reaction and for applying the sanctions.’320 If I may hazard an interpretation of Hart’s point, a basic difference between a coercive order and an enforceable obligation is that whereas in the former case coercion is a property of the order itself, in the latter case coercion is not a property of the obligation itself but a manifestation of its disposition of being enforceable. This is not a plain metaphysical detail but a pivotal aspect of how the prospect or actuality of coercion is supposed to figure in explanations of individual 319 H.L.A. Hart, The Concept of Law, supra note 18, p. 6. 320 Ibid, p. 84. 404 behavior. In the case of a rule-less (as Hart would probably say) order backed up by threat coercion explains an ensuing action whereas in the case of an enforceable obligation coercion itself is (normatively) explained by (the existence of) the obligation rather than the opposite. It turns out that when we choose to attach enforceability to obligations rather than actions the order of explanation is reversed at the cost of the disposition’s losing its predictive function. Whereas enforceability as a property of a particular order can predict when compliance will occur, enforceability as a property of normative states of affairs rather than particular orders cannot predict when an obligation will be deemed as fulfilled or pending. Hart seems to point at this direction when he remarks that ‘it is crucial for the understanding of the idea of obligation to see that in individual cases the statement that a person has an obligation under some rule and the prediction that he is likely to suffer for disobedience may diverge.’321 To this effect he refers to the example of a person who is obligated by law to report for military service and has escaped from the jurisdiction of his municipal system (or alternatively has successfully bribed the police or the court). In this case, whereas the chance of his being caught or made to suffer is negligible he is still under an obligation to act as prescribed. It is the possibility of this divergence between the obtaining of an obligation and the obtaining of a prediction that marks the difference 321 Ibid, p. 85. 405 between the predictive and the normative, so to speak, use of the concept of enforceability. The alternative conception of enforceability rests on the hypothesis that the disposition of being enforceable is a property borne by normative states of affairs. By normative states of affairs I intend to refer to all four Hohfeldian incidents.322 For the economy of the discussion I will be referring to enforceable obligations or duties as the correlative of claim rights, enforceable privileges, enforceable powers and enforceable immunities. What is crucially important for our understanding of the mechanics of enforceability as a property of normative states of affairs is that every Hohfeldian instance of enforceability bifurcates into two distinct types of manifestation. This is to say that on its current construal enforceability is a multi-track disposition in the sense that it corresponds to more than one pair of stimulus condition and manifestation. All four cases of enforceable normative states of affairs will share enforcement as one of their standard modes of manifestation. With regard to their other track of manifestation I will be provisionally referring to instances of conformity or exercise depending on the nature of the incident involved. As I already explained 322Wesley Newcomb Hohfeld, Fundamental Legal Conceptions, W. Cook (ed.), New Haven: Yale University Press, 1919. A further issue regards the conceptual links of right with external sources of normativity like the will or interests. A series of definitional theories (interest theories, will theories and hybrid theories) of right take up this challenge in tolerably neutral terms in the sense that they do not provide a full normative account of the grounds of rights. For a critical appraisal of this approach see Hamish Stewart, ‘The Definition of a Right’ in Jurisprudence (2012) 3 (2): 319-39. 406 earlier on, the definitional claims that I will advance further below are provisional in the sense that they are based on a conventional understanding of the stimulus and manifestations of enforceability. By the end of the next section I will suggest some substitutions of terms with a view to grasping the internal structure of enforceability. Moreover, another important clarification regards the use of the term ‘stimulus’. Bearing in mind that enforceability is not a natural or psychological disposition like fragility or recognizability but a social or institutional, so to speak, disposition it is advisable to qualify the function of a ‘stimulus’ in the current context of use. The reason is that the relation between the stimulus and manifestations of enforceability is not causal but, as I am about to argue, constitutive. This is to say that manifestations of enforceability are not caused by an underlying causal basis via the triggering effect of a causal stimulus. Rather manifestations of enforceability can be thought of as being constituted by the act-tokens that realize a general normative state of affairs like ‘being obligated to φ’ or ‘having a privilege to φ’ or ‘having the power to φ’. The concept of constitution is already familiar in this exposition. What is also familiar is that whereas I take constitutive claims to be literally true I have been reluctant to grant them the status of dictating an ontological commitment to constituted entities. This is a commitment on my part that I cannot neglect in the current context. For that reason, I will also suggest that whereas the proposition that an act-token of φ-ing constitutes an instance of conformity 407 is literally true, what makes this proposition true is not a fact about what counts as conformity as a numerically distinct type of action but a normative fact about the reasons that mandate φ-ing. I will be saying more about this kind of explanation in the second part of this thesis when I will arrive at discussing the way in which facts about enforceability impose normative constraints that can be satisfied by either type of manifestation. For now it will suffice to say that what the kind of explanation that is pertinent to the individuation of manifestations of enforceability is normative, not causal. To ease the flow of my story, I will begin with providing four provisional or conventional analyses of enforceability corresponding to these four elemental normative states of affairs: (a1) A’s primary duty to φ is enforceable in system S = the primary duty to φ is disposed to be conformed with if it were the case that A φ’s or to be enforced if it were the case that S sees to it that A φ’s. (a2) A’s secondary duty to ψ is enforceable in system S = the secondary duty to φ is disposed to be conformed with if it were the case that A ψ’s or to be enforced if it were the case that S sees to it that A ψ’s. (b) A’s privilege to φ is enforceable in S = the privilege to φ is disposed to be exercised if it were the case that A φ’s or to be enforced if it were the case that S sees to it that A is not prevented to φ. (c) A’s power to φ is enforceable in S = the power to φ is disposed to be exercised if it were the case that A φ’s or to be enforced if it were the 408 case that S sees to it that A’s φ-ing does not constitute an instance of B’s liability (d) A’s immunity against φ-ing is enforceable in S = the immunity against φ-ing is disposed to be exercised if it were the case that A does not φ or to be enforced if it were the case that S sees to it that A’s φ-ing does not constitute an exercise of B’s power All four equivalence schemata call for some further unpacking. A preliminary remark is that in all cases of enforcement it is the legal system either through the acts of officials or by way of enabling citizens to seek protection from the courts or other enforcement agencies that owns the agency for bringing it about that a certain coercive response occurs. A second remark regards the way in which manifestations of enforceability are triggered. Manifestations presuppose the synergy between a categorical basis and a stimulus—or more preferably constitutive condition as I previously explained. With regard to the categorical basis I will confine myself to a couple of comments as a more complete account of the grounds of enforceability will follow in the second part of the thesis. A basic distinction that I intend to flag later on is that it need not be the case that what grounds the existence of a disposition is identical with what normatively explains its manifestations. This is even more so in the case of extrinsic disposition like enforceability or vulnerability. I will therefore employ this distinction with a view to disassociating the general grounds of 409 the disposition itself from the particular grounds of its manifestations. To foretell the gist of the story, I will identify the grounds of the disposition of enforceability with a class of normative facts about the invitation of trust in the obtaining of abstract joint requirements. On the other hand, I will identify the grounds of manifestations of enforceability with facts about the agent-neutral reasons that are warrantedly presented as supporting a given joint requirement. Finally, I would like to repeat that what I intend to treat as triggers of manifestations of enforceability are the underlying ordinary actions that in the given context constitute instances of conformity, exercise or enforcement, or, as I will later specify, instances of trust reaffirmation (conformity or exercise) and instances of trust restoration (enforcement). With regard to enforceable primary duties it bears emphasizing that besides their manifestation through acts of conformity or performance their coercive manifestation can occur through a variety of remedies of direct enforcement323 primarily consisting in court orders requiring on pain of 323 The concept of direct enforcement can have significant implications for our understanding of the principles of the law of unjust enrichment and negligence law. With regard to the first case, there is an interesting question as to whether restitutionary orders issued by courts merely replicate the defendant’s primary obligation to return a benefit or whether they operate as compensatory remedies ordering that a defendant perform her secondary duty of repair for the harm caused by her wrongly failing to perform her primary obligation ; for this issue, see, Stephen A. Smith, ‘The Structure of Unjust Enrichment Law: Is Restitution a Right or a Remedy?’ in Loyola of Los Angeles Review (2003) 36: 1037-62 as well as his ‘Unjust Enrichment: Nearer to Tort than Contract’ in Robert Chambers, Charles Mitchell, and James Penner (eds.), Philosophical Foundations of the Law of Unjust Enrichment, Oxford: Oxford University Press, 2009, pp. 181-210. With regard to the case of tortious duty of care there arises a parallel question about the status of this duty. Whereas most if not all would recognize it as legal its actual treatment in the tort law scholarship 410 sanctions that the defendant refrain from breaching her duty, reverse the effects of an existing breach or perform her duty. In the case of secondary duties of repair324 their enforceable status can be manifested either by way of voluntary restoration or by way of judicial enforcement of a variety of remedial measures consisting in the award to the afflicted party of different types of damages. In the case of enforceable privileges enforceability can be makes it look more like a moral obligation rather than a legal duty. The reason is that with the exception of the torts of nuisance or tresspass not much ink has been spilt about the possibility of directly enforcing this duty by means of injunctive relief or specific performance. An interesting example regards cases of anonymity injunctions (also known as super injunctions as they are referred to in the press) secured by public persons to prevent the publishing of revelations about their private life. As Nicholas McBride notes, if it was decided that there can be legal duties of care that are not directly enforceable it would make a substantive difference to ‘what the courts may do to us on those occasions we want to do something that will involve a breach of a duty of care owed to another.’ (Nicholas J. McBride, ‘Duties of Care — Do They Really Exist?’ in Oxford Journal of Legal Studies (2004) 24 (3): 417-441). 324 Remedial rights arise because of a breach of a primary one. This is not a legal peculiarity. They arise also in extra-legal contexts as in the case of the duty to apologise or make amends even if there is no legal obligation to do so. What marks their difference is that the former are enforceable but not the latter. A further intra-legal issue regards the order of importance between primary rights and rights of repair in tort and contract law. This is not the place to indulge in a presentation of this dispute but I have to say that I tend to see this difference as less important the moment we realize the discrepancy between the reasons that ground the enforceability of primary duties and the enforceability of remedial duties. In a similar vein, remarks Dori Kimel that ‘[t]he common or the legal response to a violation of right can at best be indicative of the nature of that right or of the way this right is commonly or legally perceived. It cannot, however, “determine” what the right is—or what it should be—in any deeper, normative sense.’ (see D. Kimel, ‘Remedial Rights and Substantive Rights in Contract Law’ in Legal Theory (2002) 8 (3): 313-38, at 317). For the case of tort law see among others Gregory C. Keating, ‘The Priority of Respect over Repair’ in Legal Theory (2012) 18 (3): 293-337. 411 manifested either through their actual exercise or by means of direct enforcement of different kinds of injunctive measures preventing others or the state from wrongfully interfering with the exercise of a privilege. In the case of enforceable powers there can also be two types of manifestation. The first one consists in actions (including speech acts) that constitute an exercise of a power, in the technical sense of altering primary legal relations. The alternative and perhaps less intuitive case is nullity whereby the purported constitutive effect of a certain performance fails to ensue.325 This case will roughly correspond to an array of diverse instances of abuse 325 There is an ongoing debate as to whether legal nullity is a form of sanction. In The Concept of Law (supra note 18, pp. 33-5) H.L.A. Hart vehemently rejected John Austin’s attempt to reduce power-conferring norms to primary (duty-imposing) norms by way of equating nullity with sanction. Hart’s main argument was that nullity is not a sanction because whereas sanctions are not necessarily attached into the content of primary rules, the possibility of nullity is a logically necessary feature of secondary rules. In his turn, Scott Shapiro sides with Hart on this matter but locates the core of this distinction in the difference between limiting one’s negative freedom by imposing a sanction and limiting one’s positive freedom by refusing to confer a benefit. He notes, ‘The disparities between nullities and sanctions are ultimately traceable to the basic difference between power- conferring and duty- imposing rules. Power- conferring rules…are designed to increase positive freedom. As such, they are attempts to confer benefits that were previously unavailable. And they motivate action when the power holder views the exercise of the power as a benefit. By contrast, duty- imposing rules seek to limit negative freedom. Accordingly, the law imposes costs on that freedom in order to discourage its exercise at all times.’ (S. Shapiro, Legality, Cambridge MA: Harvard University Press, 2011, p. 65). At any rate, the issue of this debate does not directly bear on the orientation of my argument precisely because on my account both sanctions and nullity are instances (manifestations) of the more general concept of enforceability. This would allow to treat them both as different kinds belonging to a common genus or to decide to eliminate their terminological distinction. On the same topic see also Philip Mullock, ‘Nullity and Sanction’ in Mind (1974) 83 (331): 439-41. 412 of power.326 Finally, enforceable immunities can also manifest their dispositional status either by way of being unimpededly exercised or by means voiding or recognizing the nullity of the effect of an abusive attempt to alter the right-holder’s legal status. 326 Taking legal powers to be essentially enforceable in the sense that they are prone to the possibility of nullity is an ontologically committing position. It divests an array of non- enforceable political powers of their legal status. This is a position that Dworkin has consistently defended throughout his work. In Justice for Hedgehogs he provides a clear statement of this view when he notes that ‘[l]egal rights can sensibly be distinguished from other political rights only if that community has at least an embryonic version of the separation of powers…It is then necessary to distinguish two classes of political rights and duties. Legislative rights are rights that the community’s lawmaking powers be exercised in a certain way: to create and administer a system of public education, for instance, and not to censor political speech. Legal rights are those that people are entitled to enforce on demand, without further legislative intervention, in adjudicative institutions that direct the executive power of sheriff or police.’ (pp.405-6). Mark Greenberg expresses his reluctance to accept the implications of this view noting that it rules out in principle the possibility of legal obligations that the courts and similar institutions—because of, e.g., their institutional limitations, their relations with other branches of government, and the like—should not enforce. For example, it is a familiar idea that the President and Congress may have legal duties that the courts should not enforce.’ (‘The Moral Impact Theory of Law’, in Yale Law Journal 123(5): 1288-1342, p. 1300, fn 28). The underenforcement problem seems to put the doctrine of constitutional law under severe constraint as it draws a line between its political or aspirational and its legal components. For a critical approach against this line see Lawrence Gene Sager’s classic article, ‘Fair Measure: The Legal Status of Underenforced Constitutional Norms’ in Harvard Law Review (1978) 91(6): 1212-64. Dworkin’s reply to Sager’s criticism is premised on the idea that so long as we are willing to reject a two-systems view about the relation between law and morality this distinction acquires moral importance. In his words, ‘[t]he first description— that some legal rights are not enforceable on demand—might be tempting if we could sensilbly adopt the two-systems view and a positivist theory of how we should decide what the law is. We might then say that though certain constitutional rights meet the tests for valid law and are hence legal rights, there are in de pen dent reasons why courts should not try to enforce them. But 413 It also bears emphasizing that literally speaking Hohfeldian incidents do not operate in isolation from each other but cluster together in a variety of ways. This is particularly important with respect to the variety of ways in which enforceability can be manifested both as an instance of conformity or exercise and as an instance of enforcement. To illustrate this point let us take the example of a purportedly “molecular” property right Linda has over her necklace. First and foremost, Linda’s privilege entitles her to make exclusive use of her necklace including its destruction or abandonment. At the same time she has an erga omnes claim extending to any other person who might want to use her necklace. Theoretically, her enforceable privilege could be supported by way of direct enforcement in case a particular person was subject to a prohibitive injunction to refrain from interfering with her use of the necklace. Moreover, she is entitled to repair if someone takes her necklace against her will or damages it. At the second- order level Linda has a cluster of powers including the power to waive her claim over the exclusive use of her necklace, annul her claim by abandoning it or transferring the claim by selling it to someone else. At the same time, her enforceable power will be subject to the possibility of void or annullable once we reject the two-systems view as self-defeating, there seems no sound theoretical basis for that position. It would make little sense to say what we said about the Fugitive Slave Act: that citizens have a prima facie constitutional right to medical care on demand that is however trumped by some emergency that prevents judges from actually enforcing it’ (in Justice for Hedgehogs, Cambridge, MA: Harvard University Press, 2011, p. 413). In this regard I subscribe to Dworkin’s line of defense with the side comment that the normativity of enforceable legal content should also include the aspect of voluntary or non- judicially backed action. 414 exercises of it like when she sells her necklace without observing the typical requirements of property transfer. Finally, Linda is immune against others’ waiving, annulling or transferring her claim over her necklace. This can also be manifested as an occurrence of nullity when someone else removes her necklace without being so entitled.327 V.3 Law Between Coercion and Trust From the beginning of the previous section I tried to warn my reader that my account of enforceability will remain shoddy until the point that I have managed to inject some further premises. The reason is that the conventional appeal of this term can fuel severe confusion. One source of confusion we already encountered is the association of enforceability with the probability of official coercive activity. As it stands the conventional use of the concept cannot exclude the intelligibility of such a use on conceptual grounds. Moreover, another much more impinging source of confusion regards the role that enforceability assigns to official coercion. We have already seen some aspects of the ardent debate on the coercive nature of law. It would make little sense to embark on this debate by employing the conceptual tools it offers mainly because they favor polarization to the point of identifying two sides in this dispute, one that takes the relation between 327 Cf. Christopher Heath Wellman, A Theory of Rights: Persons under Law, Institutions, and Morals, Totowa, NJ: Rowman & Allanheld, 1985. Wellman tries to unpack the ontology of rights in cluster term by associating every right with a “defining core” surrounded by “associated elements” (see, ibid, pp. 90-5). 415 law and coercion as self-evidently important and one that regards this relation as a non-issue or a persistent fallacy. I believe that the bipolar structure of this discussion arrests the progress which would otherwise be made in wisdom and in worth. That being said I do not intend to obviate the pitfalls of this debate by attempting to re-invent it or sidestep some of its premises. What I do intend to accomplish in this last section is to factorize this discussion a bit more by introducing trust as a third variable. As I aspire to show, this is not an ad hoc or ill-contrived move to steer the debate closer to the origins of my intuitions. Rather it follows from my earlier comments on why I have chosen to disassociate my account of enforceability from a probabilistic conception of the relevance of official coercion. More precisely I am interested in exploring whether the type of assurance that law provides is not reducible to the predictive assurance furnished by the prospect or the actuality of official coercion. Irrespective of one’s allegiance to a tighter or looser connection between law and coercion a common platitude about their interaction is that a mechanism of official coercion is a formidable device for providing assurance. Coercion-based assurance is a concept that has a long history in political philosophy including benchmark contributions by philosophers like Immanuel Kant and Thomas Hobbes. Arthur Ripstein eloquently contrasts these two projects by noting that ‘[t]he Hobbesian argument focuses on a strategic problem: nobody wants to be played for a sucker; absent assurance, nobody will ever perform, and contracts will be factually impossible. The Kantian argument 416 focuses on a moral one: nobody can rightfully be compelled to serve the purposes of another unilaterally. Absent assurance, first performance of contracts is an instance of a much more general moral problem: any act done on the basis of another person’s claim to an external object is an instance of serving the purposes of another [emphasis added].’328 In what follows I would like to pick up the thread of this classic debate by adding an unorthodox tinge. I will not try to gauge out an essential aspect of law’s relation to coercion and assurance by contrasting a pre-legal with a legal state but rather I will deploy my argument in medias res assuming that law interacts with aspects of coercion- and trust-based networks which are already embedded in a civic environment. In particular I will begin with stating some platitudes about the interaction between the concepts of law, coercion and trust followed by a gradual course of resisting some of those platitudes. The recipe for doing this is based on treating trust, coercion and law as enabling conditions for turning moral problems to moral achievements. Firstly, I will associate the concept of civic trust with patterns of causally indecomposable joint action noting that civic trust can enable the flourishing of a type of reciprocity based on collective intentionality that intimacy cannot instantiate. Secondly, I will associate the concept of civic coercion with patterns of normatively indecomposable joint action noting that civic coercion can provide the necessary assurance in cases where common reasons for action apply to participants in a joint 328 Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy, Cambridge MA: Harvard University Press, 2009, p. 164. 417 enterprise who do not or cannot share the intention that everyone contributes to a specific joint endeavor. Finally, I will associate the practice of law with the task of enabling patterns of normatively indecomposable joint action intrinsically marked by a deficit of civic trust in the freedom- upholding character of general joint endeavors. The upshot of this gradual bridging between these three concepts and their capacity of turning problems into acquired values will license a canonical reconfiguration of enforceability as the disposition of general normative states of affairs to validate trust in the agent-neutral grounds of general and abstract joint requirements. On this alternative picture properly qualified aspects of the practice of law will operate as grounds of enforceable obligations and rights by virtue of their inviting our trust in the obtaining of general joint requirements. This will also amount to an alternative understanding of grounding in law whereby law practices do not change the moral landscape by changing the right-making features of a situation or by limiting the enforceable aspects of morality or, finally, by facilitating our response to antecedent reasons but rather by disabling or removing our distrust towards doing things together. By the end of this section I hope that I will have at least saved the notion of enforceability from collapsing into the categorical property of justified coercion. The latter concept is already familiar in traditional debates on the notion of political legitimacy and despite its relevance for institutional thought it falls short of capturing the fact that law’s relation to coercion is opaque. It is opaque in 418 the sense that this relation is mediated by trust. I would hazard to use Donald Davidson’s concept of triangulation329 by saying that trust and coercion triangulate with law as the point where their propositional targets intersect. In less figurative language, the idea is that it is not simply the case that law justifies coercion—either in the sense of making it permissible or in the sense of making it ontologically dispensable. The latter scheme amounts more or less to the justification of coercive actions that direct other actions which turns law into a source of external normative guidance. On this bipolar picture we get two sets of actions, the actions that we ought to perform—Greenberg’s notion of the moral profile is apt for this context of use—and the actions that either bring it about that we perform the actions we ought to perform or bring it about that the primary actions we perform are consistent with the freedom of others. To add some historical depth we could identify the former class of official action-directing actions with a broadly Millian conception of coercion and the latter form of freedom- 329 The metaphor of triangulation appears first in Three Varieties of Knowledge in Davidson’s discussion of radical interpretation.. Davidson writes, ‘[w]e may think of it [the interconnectedness of attitudes and behavior] as a form of triangulation: each of two people is reacting differentially to sensory stimuli streaming in from a certain direction. If we project the incoming lines outward, their intersection is the common cause. If the two people note each others’ reactions (in the case of language, verbal reactions), each can correlate these observed reactions with his or her stimuli from the world. The common cause can now determine the contents of an utterance and a thought. The triangle which gives content to thought and speech is complete. But it takes two to triangulate. Two, or, of course, more.’ (Donald Davidson, ‘Three Varieties of Knowledge’ in Royal Institute of Philosophy Supplement (1991) 30: 153-66, at 159). 419 constituting or public actions with a broadly Kantian conception of coercion.330 In the former case law purports to justify the coercive nature of the means it uses to guide conduct, whereas in the latter case it purports to justify the inherently coercive structure of the interaction between primary actions. What both conceptions share is the idea that law purports to justify coercion either as a tool for guiding conduct (in the Millian sense) or as a way of constituting compossible spheres of practical authority (in the Kantian sense). The following figure purports to capture these alternative routes for a legal justification of coercion: 330 I entirely owe the outline of this juxtaposition to Arthur Ripstein’s conceptual regimentation of the debate on the relation between law and coercion (see his ‘Authority and Coercion’ in Philosophy and Public Affairs (2004) 32 (1): 2-35). In the discussion of justice in his essay Utilitarianism (1861) John Stuart Mill remarks that ‘we do not call anything wrong unless we mean to imply that a person ought to be punished in some way or other for doing it; if not by law by the opinion of his fellow creatures; if not by opinion by the reproaches of his own conscience.’ (John Stuart Mill, Utilitarianism, in J.M. Robson (ed.), Essays on Ethics, Religion and Society: Collected Works of John Stuart Mill, Vol. 10, Toronto: University of Toronto Press, 1969, p. 245). For Mill, sanctions are geared towards the harm caused by things people should not do. On the other hand in the Doctrine of Right, Kant tells us that right always includes—as a matter of conceptual necessity—the authorization to coerce (see Immanuel Kant, The Metaphysics of Morals, trans. Mary J. Gregor, Practical Philosophy, Cambridge: Cambridge University Press, 1996, p. 388). Kant’s conception of the relation between law and coercion is not instrumental but constitutive, so to speak. He takes rightful coercion to be the ontological counterpart of rightful exercises of rights and takes the former as a way of upholding the status of the latter. 420 The alternative idea looks elsewhere. It neither seeks to re-constitute in a rightful scheme the coercive structure of interacting forms of individual agency nor does it seek to justify the coercive direction of individual actions. What it seeks to do instead is to invite our trust that some forms of joint agency are not per se wrongfully coercive despite the possibility of coercive actual materializations of these forms. On this approach the problem is neither that joint action is inherently coercive nor that a non- coercively structured joint action must also be supported by coercive means. The problem rather is that a pro tanto non-coercively structured pattern of joint action can turn out to be ex post coercive in the sense that its particular instances rather than its form can turn out to be coercive for a variety of circumstantial reasons having to do with rule of law-related failures, our epistemic deficiency, our akratic behavior or sheer bad luck. 421 When we are jointly required to be doing abstractly individuated things indefinitely, beyond the prospect of a particular achievement, it is inevitable that we will end up getting things wrong in choosing patterns of implementation that fail to replicate the non-coercive structure of their abstract counterparts. We could say that law enters the scene in the persuasive mode: it purports to convince us that we should not be dissuaded from jointly acting on worthwhile abstract patterns just because these patterns may occasionally misfire in their realization by producing coercive instances. What law does in this respect comes in two steps: (i) it invites our trust that, even though particular instances of a joint activity can turn out to be wrongfully coercive, the form of a certain pattern of joint action itself is not coercive in the sense that it is supported by reasons that we could all share, and (ii) it enables the validability of this trust. The second step is a normative consequence of the former step precisely because even if we could trust that the abstract form of an activity is non-coercive we could eventually lose this trust in the face of actual failures to replicate this non- coercive pattern in particular circumstances. As I noted earlier, this validation can be manifested in two ways. The first way is when we make things work well. Our trust can be reaffirmed when particular instances of a joint activity turn out to be consistent with everyone’s freedom, or, in other words, when they replicate the non- coercive structure of their abstract counterpart. The second way involves the restoration of our shaken trust when particular instances of 422 implementing an abstract pattern of joint activity turn out to be wrongfully coercive.331 These infelicitous instances can be as innocent as when an angelic person unintentionally but mistakenly cuts trees from another’s land or when one angel loses control of her wings and is about to crush another.332 Or, they can be nastier than any twisted mind could imagine. What matters is that it is inevitable that we are bound to screw things up when the form of these things is general and cross-temporal. A. Resisting Some Platitudes about the Relation between Law, Coercion and Trust Law and trust are remarkably versatile devices of forming and sustaining relationships marked by some kind of power differential and for that reason their impact can be both empowering and costly. Both seem to lay the groundwork for a morally necessary expansion of freedom. By way of official enactment law widens the scope of what we can be in charge of without wronging others whereas interpersonal trust endows the trusted person with a significant leeway in steering relationships of mutual or unilateral dependence or reliance. On the other hand law and trust can be instruments of risk containment but also sources of potential risk. Law protects our independence from other people’s choice by making sure that transgressions of our rights will have no legal effect. At the same time, 331 As we already saw, restoration can take place through a variety of institutional remedies of direct or reparative enforcement. 332 I owe this figurative example to Arthur Ripstein. 423 however, it interferes with our freedom of choice by imposing costs that we would not otherwise have incurred thus compounding our vulnerability to potentially abusive coercive treatment. In a similar way, trust serves to contain the interpersonal risk emerging from the freedom of others by way of enabling us to interact with strangers who are not related to us by loyalty, kinship or enmity. On the negative side, trust can be also dangerous as we always run the risk of losing the things that we have entrusted in others including our self-respect or sense of moral integrity. The affinity between law and trust can also be manifested as a normative conflict between formal and civic policies of regulating both impersonal and personal relations. A purportedly defining feature of law is its comprehensiveness333, namely, the fact that it claims authority to regulate any type of behavior. What is crucial in this respect is law’s claim to be possessed of the authority of global regulation rather than its actual capacity or determination in regulating all forms of behavior. On the other hand, the practice of trust is equally comprehensive with regard to its normative aspiration to englobe the entirety of intrinsically or derivatively valuable social relations that constitute what is commonly referred to as the ‘social capital’334 of a political community. Both intimate and civic trust 333 For an overview of the defining properties of legal systems (including the property of comprehensiveness), cf. Joseph Raz, Practical Reason and Norms, supra note 18, p. 150 ff. 334 There is a burgeoning literature on the concept of social capital. The term “social capital,” introduced by James Coleman (see his Foundations of Social Theory, Cambridge, Mass.: Harvard University Press, 1990: chap.5), was initially coined to describe the set of social norms, values and expectations that boost economic activity, but which could not be 424 purport to enable our access to scarce and valuable resources made available by diverse relationships based on trust. The inherent tension between formal and civic avenues to building and sustaining relationships is also betokened by the fact that our colloquial vocabulary used to describe and conceptualize these two practices is marked by polarization. For instance, we tend to portray relationships primarily regulated by means of formal laws including the imposition of sanctions as featuring self-seeking and competitive parties, whereas we are much less inclined to be suspicious of the motives or goodwill of people relating to each other on the basis of personal or even impersonal trust. This juxtaposition is not meant to serve as a template for developing a comparative account of the relative strengths of legal regulation and interpersonal trust in effectively shaping different types of social interaction. Nor does it purport to introduce a scale for measuring the tenacity with which legal norms and reasons of trust respond to their reductively explained in terms of economic self-interest. Ever since there has been an impressive widening of the scope of this notion which has come to include any network, association or practice that enables collective action. Some approaches place more emphasis on its social embeddedness, whereas other approaches are more prone to emphasize it functional role in providing actors with access to valuable and scarce resources that contribute to their well-being; see, for instance, S. Durlauf and M. Fafchamps Social Capital, (2004) NBER Working Paper No. W10485, Massachusetts: NBER and N. Lin Social Capital: A Theory of Social Structure and Action, New York: Cambridge University Press, 2001. Finally, there are a few contributions aimed at showcasing its experiential dimension, namely, the way in which social relations are experienced by those who participate in them. For the latter approach, cf. F. Torche and E. Valenzuela, ‘Trust and Reciprocity: A Theoretical Distinction of the Sources of Social Capital’ in European Journal of Social Theory (2011) 14 (2): 181-98. 425 transgression or betrayal respectively. It rather purports to provide a very general background for a common account of how these two concepts interact with each other and the use of coercive means in meeting requirements of joint action, or in plainer language, in shaping the reality of having to do things together. From this very general description no inference can be allowed to determine which order of explanation and which criteria we should employ in specifying the relation between law and trust. The main reason for choosing to introduce these concepts horizontally is the importance the ensuing analysis ascribes to resisting some familiar platitudes about how principled consistency in legal enforcement enhances our trust in legal institutions (political trust) or, conversely, how civic engagement and education promotes law-conforming behavior thus making coercion a much less prominent aspect of legal practice (civic trust). Both ways of modeling the relation between law and trust presuppose an instrumental process featuring trust either in its property sense (trustworthiness) or in its attitudinal sense (trusting). In the former case we proceed by asking what makes legal institutions worthy of our trust, whereas in the second case we care to know how the fulfillment of our legal duties and the exercise of our legal rights can be facilitated by a widely shared affective attitude of optimism about the goodwill and competence of our fellow-citizens in adhering to their civic commitments. Although I do not intend to downplay the importance of these correlations I do intend to suppress their relevance 426 for my argument. The motivation for this should come up at a later stage of the discussion when it will become less obvious why we should grant these assertions in the first place. In what follows I would like to inject some further premises. A first point will be that law and trust, each taken individually, can be more than mere instruments in forging valuable relationships and containing their impact. In its generalized form trust is a constitutive element of the ‘social capital’, namely, the set of social values, norms and expectations that are operative in a given social structure and enable large-scale cooperation and coordination for mutual benefit. Our social lives involve situations in which we go beyond our kin and in-groups and decide to entrust aspects of our well-being to other people with whom we share no sociocultural or biological affinity. Patterns of collective action or shared agency that supervene on relations of social trust are intrinsically valuable for they enable collective intentionality to flourish. By figurative analogy, law can be seen as the major component of what we might call the ‘legal capital’. This is roughly coextensive with the set of legal obligations, privileges, powers and immunities that obtain in a given political community and enable an expansion of the scope and impact of relations of practical authority beyond what our voluntary or communal associations can accomplish. A second point that follows naturally from an affirmative stance towards the first point is that law, coercion and trust can also be non-instrumentally 427 related. More precisely, the idea I would like to put on the table is that law can be the solution to a normative problem about the relation of trust to coercion. The way in which generalized trust in our fellow-citizens achieves the task of making worthwhile patterns of collective action possible is by making causally indecomposable the collection of individual actions instantiating a joint activity of some sort. This is usually described in terms of a shared understanding of what we can expect from each other.335 More technically, civic trust supervenes on a pattern of shared intentions and beliefs such that for a given pattern of joint action Φ involving me and you our jointly Φ-ing becomes possible when both of us come to individually acquire the intention that I do my part of Φ-ing and you do your part of Φ- ing.336 For it to be the case that our individual intentions to Φ can jointly 335 An instance of this reductive understanding of collective action is Annette Baier’s view that, ultimately, collective action depends upon the good will of participants, their shared understandings, their common interests, and their skilled attention to contingencies (see her ‘Trust and Antitrust’ in Ethics (1986) 96 (2): 231–260, especially at 245–253). 336 A locus classicus for the notion of shared agency and its relation to shared intentions is an influential series of papers written by Michael Bratman in defense of his reductive account of shared activity and shared intention. Bratman has suggested that what an individual intends can extend beyond what she be in control of provided that she can reasonably predict that others intend to act accordingly (see among others his ‘Shared Intention’ in Ethics (1993) 104: 97–113 and his ‘Shared Agency’ in C. Mantzavinos (ed.), Philosophy of the Social Sciences: Philosophical Theory and Scientific Practice, Cambridge, UK; New York: Cambridge University Press, 2009, pp. 41–59). A more modest approach is defended by authors like Raimo Tuomela and Christopher Kutz; on their view participants in a joint pattern of action cannot intend the entirety of the causal processes that constitute their activity but only their individual contribution to it (cf. R. Tuomela, The Philosophy of Sociality: The Shared Point of View, New York: Oxford University Press, 2007 and Ch. Kutz, ‘Acting Together’ in Philosophy and Phenomenological Research (2000) 61:1–31). A more 428 settle that we shall Φ we must trust each other that each one of us will form and maintain her intention on condition that the other will also intend likewise. By virtue of this network of trust-based valuations each one of us forgoes in good will the opportunity to try to unilaterally determine the outcome either by way of free-riding or by way of coercively enlisting others to our purpose. The problem seems to arise so long as we are willing to resist the thought that the only metaphysically possible form of large-scale collective action is one that emerges as a result of an interpersonal structure of causally related intentions. This would make causally indecomposable actions the only type of collective action. We surely do not want to exclude the epistemic possibility that people can still count as acting together even if no one is caused to act by the attitudes of the others. In the latter case we care to know if it is possible for causally autonomous individual actions to constitute a joint action that is normatively indecomposable.337 This would be possible only if the reason-giving aspects of my action and the reason- giving aspects of your action are indistinguishable such that I have a reason to act for the sake of your being capable of acting on the reason you have normative approach to the same question is Margaret Gilbert’s notion of joint commitment. According to Gilbert, shared activity is such that its context imposes an obligation on every participant to do his or her part (see her Joint Commitment: How We Make the Social World, New York: Oxford University Press, 2013). 337 I owe this line of reasoning about the scope of joint action to A.J. Julius’ ingenious elaboration of the concepts of joint requirements and coercion. See his ‘The Possibility of Exchange’ in Politics, Philosophy & Economics, (2013) 12 (4): 361-74. 429 and vice versa. Whereas in the case of causally indecomposable collective action it is other people’s intentions that glue our individual actions into a worthwhile whole, in the case of normatively indecomposable collective action it is the value of joint action as such that makes a pattern of joint action worthwhile. What is crucially important in the latter type of activity is that social trust as explicated above cannot perform the task of enabling our actions to constitute a worthwhile whole. The reason is that sometimes the assurance we seek has nothing to do with other people’s intentions or goodwill. Sometimes my primary concern is whether I can trust that I will not end up acting in the service of reasons I do not or cannot share. This worry can hold irrespective of whether others have no declared or implicit intention to treat me as a mere means. This assurance will be most needed when the composition of a joint action is not transparent to our salient interests. This can be the case when we decide to streamline our actions towards instantiating an infinitely repeatable (universal) act-type such that the infinite conjunction of its particular instances composes a more abstract type of joint activity. Take, for instance, the act-type ‘paying taxes’. The most plausible candidate resulting from the continuous instantiation of this act-type is the collective action of ‘redistribution’. Consequently, we might say that we should do (each one pays her taxes). For ease of exposition, we may contrast this case with the example of a rural community’s decision to build a levee that will protect all villagers from an imminent flood. The joint 430 requirement pertaining to their case can be formulated as ‘we should do (each one pitches in with labor and materials to make a levee that protects us all).338 In both cases our individual contributions have a valuable property that each lacks on its own: in the former case, they amount to a pattern of ongoing redistribution, whereas in the latter case they constitute the building of a levee. But this is where similarities end. In the levee case we may need some extra assurance that everyone will contribute to the construction of the levee if we are uncertain whether every resident in the village has recognized the joint requirement to proceed with its building. To this effect we can cement our trust that everyone will eventually do their part by announcing in advance that if anyone holds out we shall pump water into her house. For the sake of avoiding a further complication of this example we may assume that this coercive announcement is justified all things considered.339 If we now draw our attention to the other case we will immediately see that our trust predicament takes on a more complex turn. In the case of redistribution our primary concern is not whether we can trust that others will be equally disposed to pay their taxes. This is not to say that this assurance problem is marginal but its solution is conceptually 338 I owe this example to A.J. Julius. 339 On Julius’ Independence Principle interpersonal coercion is wrongful if A does y, intends by y’ing to bring it about that B does x, and fails to believe with warrant that, for some reasons R independent of her, her y’ing facilitates B’s [doing x because B takes R as giving her sufficient reason to x]. See ‘The Possibility of Exchange’, supra note 44, p. 365. 431 downstream of another problem of trust. Before settling how we can trust each other that everyone gets to pay their own share we care to know whether we can trust that by helping to instantiate this particular pattern of redistribution we remain independent of other people’s purposive activity. Differently put, there seems to be a pressing concern that without the provision of some external assurance it will be a matter of luck whether we end up expending our means (in this case, our money) in the pursuit of ends servicing others. In this latter case, any announcement to the effect that free-riding will be sanctioned cannot by itself be a credible measure of a given redistributive pattern’s capacity to uphold our independence. To see why this cannot be the case we may bring in again the example of the levee construction. By addressing this announcement to all participants in the construction project each person can be facilitated in responding to the joint requirement of pitching in to make the levee by virtue of the fact that this announcement invites her trust that others can be led to do what they are jointly required to do without being themselves wronged, that is to say, without being led to use their means (materials and manual labor) in the service of ends they don’t share. Whereas in the latter case the coercive announcement suffices to provide the necessary assurance that our independence will be upheld, in the case of redistribution nothing that amounts to merely announcing that this redistributive pattern will be enforced warrants our trust that we are not being impressed into joining an activity for reasons that we cannot 432 share nor that—supposing that that normative structure of a given abstract pattern upholds our acting for the sake of each other’s freedom—particular instances of this pattern shall not fail to uphold a structure of exchange that realizes joint purposiveness. In the levee case our shared interest in building this protective device is salient enough to ground our joint duty to build it and lend credibility to the announcement that those who decline their help will incur a significant cost. By sharp contrast, our jointly instantiating a more abstract pattern of collective action like redistribution is opaque to the content of the reasons we can all share for carrying it out mainly because the transition from composite time-bound actions (each one pitching in materials and personal labor to make a particular levee that will protect A, B, C…) to instantiable act-types (paying taxes) is marked by a significant decrease of the visibility of our concrete purposiveness in the description of our joint obligations. The more abstract and hence the more cross-temporal the scope of a joint requirement gets the more opaque the reasons we can share become. This results in a heightened concern that the abstractness of what we are jointly required to do may suppress features of our personal identities and pursuits that render our participation in the costs and benefits of an abstract joint enterprise unequal. B. Distinguishing the Legal from the Social Capital: The Role of Coercion and Trust 433 The situation just described poses a challenge for our understanding of the way in which the building blocks of our joint activities are being transformed as we gradually shift our focus from people’s attitudes towards their actions to valuable features of their actions that hold independently of those attitudes. It invites us to consider whether every further step in this transformation is a solution to a moral problem faced at the previous step, and, if so, what prevents us from experiencing this succession as a sign of moral progress rather than as a sign of social alienation. In what follows I would like to recommend an alternative route for drifting through different environments of collective action. This new route will not be based on an alternative mapping of available taxonomies of collective agency but rather on an alternative compass that may alter our habitual pattern of navigating through a pretty much charted territory. Leaving metaphors aside, my goal is to explore how law can be a solution to a composite moral problem featuring both issues of trust and wrongful coercion in its premises. I hazard to guess that the dominant jurisprudential understanding of the role of sanctions portrays the latter as a means of guiding conduct both prospectively (by way of coercion) and retrospectively (by way of trust).340 Ex ante, that is, prior to actual violations of legal rights or obligations, the prospect of the imposition of a legal sanction operates as a weighty 340 As Arthur Ripstein remarks, ‘[t]he prospective and retrospective fit together because the external incentive to conform with the law is just the law’s guarantee that any violation will be legally nothing, its guarantee that rather than earning the criminal the exemption from the law that he seeks, it will exclude him from the aspect of the law that he has violated’ (in Force and Freedom, supra note 35, p. 307). 434 disincentive for those who contemplate about breaking the law. Ex post, the same system of legal sanctions invites our trust that the wrongful acts of others will fail to produce any permanent legal effect at our expense or bereave the legal system of its authorization to govern conduct. Against this prominent portrayal of legal sanctions as a double tool of assurance and coercive guidance I would like to explore whether these prevalent philosophical propositions about the role of legal sanctions are, in fact, intuitive to ordinary non-philosophers or legal theorists. My suspicion is that whereas the jurisprudential account of the ex ante role of legal sanctions is most likely compatible with a folk conception of deterrence, the jurisprudential account of the ex post role of legal sanctions is less intuitive to a layperson.341 By contrast to this more philosophical account of the relation between sanctions and the upholding of trust in the normative inefficacy of unlawful behavior, we should expect that a folk conception of sanction-induced trust will consist in the predictive belief that others are less likely to take the risk of encroaching upon our ‘rightful space’.342 341 A hypothesis we should examine before concluding that the layman’s understanding of legal coercion is mainly prospective regards the body of folk beliefs about the conditions for the legitimate use of force. In this regard, Dan Priel suggests that ‘[t]he starting point should still be that for most people the law is associated with some vague ideas on the conditions for the legitimate use of force. From this starting point we must consider whether certain beliefs about what role law can play in the organization of society may affect the shape law can take in order to be able to satisfy the requirements of normativity’ (see his ‘Jurisprudence and Psychology’ in M. Del Mar (ed.), New Waves in Philosophy of Law, Palgrave Macmillan, 2011, pp. 77-99, at 89). 342 This endeavor will inevitably necessitate the selection of some ‘intuition pumps’ or ‘thought experiments’. 435 In conclusion of this multifocal investigation of the non-instrumental ways in which law, coercion and trust can interact, I would like to briefly present a final aspect of their intricate connection. This aspect invites a fair amount of metaphysical argument precisely because it features the question of how law can be a solution to a moral problem about trust. To this effect it may be useful recall that in the previous section I tried to sketch the trails of a transformative process undergone by participants to patterns of joint action. Pulling the thread from this sketchy end I would like to inject some further content with a view to increasing the visibility of law as a crucial factor for the expansion and preservation of the social capital. The main idea that I set out to develop is that there is an interesting story to be told about the ontology of joint action. More precisely, I ventured the hypothesis that there are at least two distinct types of collective action, one owing its status to the indecomposability of its causal properties and another one owing its status to the indecomposability of its normative properties. In this regard I have tried to associate the former type of collective action with informal networks of social cooperation and coordination whereas I chose to reserve the applicability of the latter type for institutional or quasi- institutional contexts. In this last section I would like to suggest a final breakdown, this time within the category of normatively indecomposable collective actions, with a view to portraying in a more fine-grained manner the gradual process by which trust initially appears as a solution to a moral problem about reciprocity, then coercion kicks in as a solution to a problem 436 about trust and finally law appears as a solution to a problem about the relation between coercion and trust. As already noted, causally indecomposable joint activity is marked by an inextricable network of trust allocation among social actors which is further premised on shared interests as well as upon shared cultures that provide necessary warrant for people’s expected behavior. In this ground-level setting trust assumes the task of conditioning the individual contributions of agents on the normative expectation that others will abide by the same joint pattern precisely because they share the same interests or values. At this basic level civic trust is a top-notch solution to a problem of reciprocity in impersonal or broadly social relations. By sharp contrast with intimate relationships where trust operates more like a duty or virtue rather than as an enabler of other duties or moral necessities, impersonal social relations are already too thin to operationalize the “habits of the heart” that motivate the rewarding of kind actions with kind responses. As we move into more political territories, however, shared interests or values cannot simply be taken for granted or even elicited from our convergent responses to calls of joint action. It is precisely that moment when the concept of justified coercion assumes its task of solving a problem of trust. The problem inherited from the previous stage of social interaction is precisely the fact that not all types of joint social activity are causally indecomposable for the simple reason that our trust that others share the 437 same or similar values with us is not warranted. The problem of trust that arises in this respect is that parties to a pattern of joint action are less likely to be constrained in their actions by a shared understanding of what is at stake. At the same time, our actions remain normatively indecomposable and thus mandatory precisely because their individual value cannot be grasped independently of the value of the pattern they instantiate. As a result, whereas there seem to be occasions where we fail to actually share or fail to be led to share the same intentions, we are still tied to the same reasons for action dictated by the overall value or principles of joint action. Our commitment to these reasons holds regardless of whether we are actually motivated to act for their sake. What justified coercion purports to contribute in this case is an extra warrant that the metaphysically demanding concept of a “we-intention” fails to provide in many circumstances. This amounts to the assurance that in default of the relevant intention others will be led to contribute to a joint venture in a way that does not wrong them, that is to say, in a way that facilitates them to respond to the reasons that apply to everyone in the first place. On this picture it appears that where civic trust fails, we may come to trust that everyone will be led to participate, in one way or another, to a joint scheme of action not because of a pervasive convergence of intentions but in virtue of (the applicability of) a principle of justified coercion. In this sense we could say that the permissibility of coercion warrants a type of 438 political (as opposed to civic or social) trust.343 The latter principle ensures that everyone can be led to recognize either voluntarily or by way of coercive direction of her action that her contribution is required by reasons that apply to all. Fortunately, if I may remark, this is not the end of our problems as the problem of lack of reciprocity to which civic trust supervening on a shared intention to act on commonly accepted values is a solution and the problem of lack of shared intentions to which political trust supervening on justified coercion is a solution may also act in synergy such that a new, more complex problem arises. As already hinted, this is neither just a problem about trust nor just a problem about the permissibility of coercion; rather it is a problem about their relation.344 This complex problem is not reducible to what Kant has described as a problem about 343 In an institutionally advanced context, the trustees will be the bearers of institutional roles rather than private persons, especially those empowered to authorize the use of force or sanctions. 344 The problem I have in mind could fit under the rubric of what Scott Shapiro describes as the circumstances of legality. According to Shapiro, ‘[t]he circumstances of legality obtain whenever a community has numerous and serious moral problems whose solutions are complex, contentious, or arbitrary’ (in Legality, supra note 32, p. 170). Whereas Shapiro puts forward legal planning as an answer to these circumstances, the approach that I tend to favor locates the solution in meeting the necessary and sufficient conditions for triggering through the actions of legal institutions a certain type of political principle. The name I have reserved for it is more descriptive than definitive but I hope that it can convey the relevant message. This is the Principle of Trust Validation which is triggered by legal practices so long as the latter qualify as inviting our trust that a particular type of action is supported by reasons that we can all share. Very briefly, this principle states that: If an obligation to Φ is genuinely disposed to validate the trust of members of a political community C that Φ-ing is supported by reasons that all could share it ought to be the case that this trust is validated. 439 independence in the technical sense of extending to every person a right to set ends that obtains independently of other people’s choices.345 Kant’s puzzle about the possibility of external freedom is not a problem about jointly required action but a problem arising from the fact that in abstracto the exercise of my ability to pursue my own ends depends on others’ omitting to pursue what is inconsistent with my means of achieving my ends or with my capacity to choose an end for myself. The normative structure that a Kantian theory of law brings to bear upon this problem is the structure of law-constituted or omnilateral public authority.346 In other 345 In Kant’s own words or perhaps in the spirit of his words the type of agency that is made possible only within the contours of law-governed communities must be something like the relation of being in charge of things beyond one’s own body. Being in charge of something (beyond one’s own body) is a generic term for more specific kinds of relations of authority that Roman private law has traditionally tabulated as relations of property, contract, and status which govern rights to things, to performances by other persons and rights to other persons respectively. Law, or public law in Kant’s parlance, enters the picture by virtue of its serving as a constitutive condition for the rightful obtaining of these relations, that is, the realization of these relations without any of the parties involved being wronged. For Kant this type of agency is a morally necessary extension of peoples’ innate right of humanity in one’s own person understood as the right to be capable to pursue one’s ends independently of other peoples’ choices. For a systematic defence of this approach to practical authority see A. Ripstein Force and Freedom: Kant’s Legal and Political Philosophy, supra note 35. This key idea is condensed in Ripstein’s remark that ‘[o]nce the possibility of rightful relations that can be created through affirmative acts is introduced— the possibility that there are things other than your own body [emphasis added] through which you might set and pursue your own purposes—the Universal Principle of Right can only be consistently extended in a way that makes it an extension of freedom rather than a limitation on it’ (p. 58). On this construal legal authority is a moraly necessary extension of one’s practical authority over one’s own body, or in Kantian jargon, a necessary complement of one’s innate right of humanity in her own person. 346 A. Ripstein correctly takes instances of property acquisition to be characteristic of this mode of normative interaction between agents. He writes, ‘Kant’s point is that the theory of 440 words, law’s solution to the problem of lack of naturally bestowed practical authority is also authority construed this time as a property of an omnilateral will or, less figuratively, as a property of public institutions. In what follows, I will try to expand on an alternative idea currently under development by A.J. Julius according to which the value of independence is not reducible to the value of being capable to set and pursue ends independently of others’ choices but rather it derives its force from the value of joint purposiveness, that is, the value of jointly acting for the sake of each other’s freedom. Julius epitomizes this idea when he notes that ‘[T]his reason-given reason to facilitate the action for which you have good reason is grounded on the reason that I have to act consistently with your acting for the reasons you have. It is for its own sake good that a person act for the reasons she has. It’s up to her, in the end, to achieve this value. But the value also reaches across the practical challenges of different persons, giving each person reason to act for the sake of the other’s acting for the reasons she has.’347 Being motivated by the aspiration to connect the dots between different stages of our doing things together, I would like to take the liberty of property raises a deeper problem of how one person’s act can place another person under a new obligation. How can an act done entirely of your own initiative, to which others are not parties, have binding effects on them?’ (A. Ripstein, Force and Freedom, supra note 35, pp. 153–4). 347 A.J. Julius, ‘Public Transit’ in George Pavlakos and Veronica Rodriguez-Blanco (eds.), Practical Normativity: Essays on Reasons and Intentions in Law and Practical Reason, forthcoming in Cambridge University Press; manuscript available at http://www.ajjulius.net/papers/public%20transit.pdf. 441 departing from a relational conception of coercive interaction between agents by injecting some further content with a view to locating the problem not in the coercive complications of our intersecting individual agencies but in the potentially coercive particular outcomes of instantiating patterns of joint activity whose abstract or formal structure is not per se coercive. Whereas, in abstracto, exercises of one’s external freedom are externally incompatible and thus coercive, I will suggest that jointly acting for the sake of others’ freedom is not in abstracto coercive. On the former Kantian conception law serves to undo or minimize this incompatibility whereas on the latter view it appears that the urgency of law’s intervention is not yet visible. Law is still missing from the picture. The latter view calls for another element that will make imperative the appearance of law. In the second part of the thesis I will suggest that this element is trust. The fact that in their abstract form there can be patterns of joint activity that do not rely on a structure of potentially coercive interaction is an aspect of the normative indecomposability of these forms of joint action.348 348 A.J. Julius makes this point in response to the Kantian concern that individual exercises of practical authority are potentially externally incompatible (and thus wrongfully coercive) with others’ exercises of practical authority. He notes, ‘[w]hat your end of freedom- consistent westward travel is bringing you to do, in the way of particular dated westward steps, is not determined independently of this deliberation that includes my own thinking about when to move. It is still to be decided within our currently unfolding decisions of how to act for our ends of freedom-consistent motion. Before you and I work that out [when two pedestrians’ paths are about to cross], your freedom-consistent trip stands in no determinate incompatibility relation toward my own possible bodily motions. And so my decision to yield is not my choosing against some motion just because it’s incompatible with the accomplished fact of what you’re doing.’ (A.J. Julius, ‘Independent People’ in Sari 442 At this abstract level and before the contingencies of instantiation or specification make their appearance, the value or imperativeness of our individual contribution does not correspond to an ideal slice of the composite value of a joint activity. Rather it is wholly transparent to the value of the activity as whole. In this regard, at this abstract level there arises no matter about the consistency of our individual purposive actions with the purposiveness of others. Others do not have to omit to pursue what is inconsistent with my means of achieving my ends or with my capacity to choose an end for myself because in the abstract form of our joint action we are represented as being bound to realize the value of acting for the sake of others’ freedom. The latter must hold despite the fact that infelicitous instances of our jointly realizing this value may give the impression that we are acting for reasons that cannot be owned by everyone involved in this joint enterprise. By this qualification I do not intend to defend a considerably stronger statement, namely, that from the point of view of the law the value of individual practical authority collapses into a jointly required recruitment in the service of common ends. Whereas this is a position that is in principle defensible I do not intend to inject it into my premises mainly because I cannot locate a compelling reason for treating juridical relations as the reduction base for relations governed by principles of interpersonal Kisilevsky and Martin J. Stone (eds.), Freedom and Force: Essays on Kant's Legal Philosophy, Oxford: Hart Publishing, forthcoming April 2015, available at http://www.ajjulius.net/papers/independent%20people.pdf.). 443 morality. What I am trying to say instead is that from the point of view of the law relations of practical authority can be re-described or re- individuated as joint requirements in the sense that we are jointly required to act for the sake of other’s capacity to pursue their own ends. In this case what exists in common are not idiosyncratic ends but the reasons for joint action furnished by the value of upholding each other’s freedom. In other words, we are jointly required that (I act for the sake of my action’s consistency with your freedom, you act for the sake of your action’s consistency with my freedom and so on). The only substantive departure from the Kantian enterprise is that acting for the sake of consistency with others’ freedom—as opposed to mere consistency with other’s freedom—can itself be a value realized by joint requirements of this form.349 Finally, it bears emphasizing that the inclusion of the motive of freedom-consistency in the description of a joint requirement is counterfactual in the sense that what makes someone praiseworthy for her freedom-upholding conduct is the fact that she could treat the fact that her action enables this consistency as a reason for action.350 349 I owe the entirety of this line of argumentation to A.J. Julius. In his words, ‘no profile of externally compatible, externally individuated action suffices for that independence. You are not independent unless I am acting for the sake of your independence. If this is right we’ll have to choose between Kant’s two descriptions of his topic: between the study of external obligations and the reconciliation of mutual hindrance with independent purposiveness.’ (ibid). 350 I believe that occasionally Julius forebears to flag the importance of the distinction between the value of sharing an intention to act for the sake of each other’s freedom and the value of sharing a reason to act for the sake of each other’s freedom which holds independently of whether others intend that they act for the sake of making their actions 444 C. Inviting and Validating Trust: Function My suggestion will be that law enters the picture the moment we become aware of the need to find a solution to the problem of trust deficit regarding the non-coercive or freedom-upholding structure of abstract patterns of joint action. On this picture the problem of wrongful coercion does not appear at the abstract level of joint agency but in its instantiation. We already saw that abstract patterns of joint action partaking of the normative structure of acting for the sake of others’ freedom do not replicate the Kantian problem of external incompatibility between exercises of one’s individual purposiveness. As a result we should not be concerned about what could make, at this abstract level, externally incompatible patterns of individual purposive activity consistent with everyone’s freedom precisely because at this abstract level it is not only normatively possible but normatively optimal that we are jointly required to act for the sake of our actions’ consistency with the freedom of others. What should worry us consistent with my freedom. Whereas it is clear that Julius wants to argue for the latter type of joint action his prose can be sometimes misleading. In Independent People, he writes, ‘when I make it my purpose to [pursue my other ends consistently with your freedom], this practical stance does not constitute a tendency of action standing in determinate incompatibility relations with the things you might do. Instead of confining your action to what’s externally compatible with itself, my freedom-minded intention [emphasis added] joins yours in throwing rational support to one or another pattern of your and my compatible action.’ (ibid). 445 instead is the fragility of our trust in the actuality of these joint requirements. This fragility is compounded by the fact that, inevitably, particular instantiations of patterns of joint action will occasionally misfire thus giving the erroneous impression that we are not after all jointly realizing something required by reasons we could all share, or in more generic terms, that we are not jointly realizing the value of acting for the sake of each other’s freedom. Fortunately there is hope. The disenchantment following from our constant exposure to the danger of losing our faith in these freedom-upholding reasons can be offset by a two-stage enterprise carried out by law. The first stage is epistemic. The deliberative nature of law practices can—under some qualifications that I will specify further below— provide an independent reason to trust that there are joint requirements that realize the value of acting for the sake of each other’s freedom. Law can make it the case that this reason of trust holds independently of our individual presumptions, expectations or hope that particular joint requirements are non-coercive of freedom-upholding in their formal structure. The second stage is practical. The categorical epistemic fact that some aspects of a legal practice invite our trust that some abstract patterns of joint action are endowed with the normative structure of jointly acting for the sake of each other’s freedom further grounds the dispositional practical fact that this trust is disposed to be validated—or in more conventional terms, that these abstract patterns of joint action are enforceable. In what 446 follows I would like to expand on the idea that law can, firstly, provide this much needed epistemic reason for trust and, secondly, mandate the validation of this trust by enabling the reaffirmation of the validity of its reason—when the instantiations of a joint pattern inherit its formally non- coercive character—or the restoration of the validity of our reason to trust— when particular misfires revive wrongfully coercive modes of interaction. What is crucially important is that the practical difference that law- making practices make is neither that they enable the obtaining of abstract joint requirements nor, of course, that they ground their status as abstract joint requirements. Their practical import consists in the practical reaffirmation and restoration of our epistemic reason to trust that these joint requirements obtain. In this regard the normative implications of doing things together in a political community governed by law are not exhausted by the realization of intrinsically worthwhile patterns of joint action which in their turn also count as realizations of the highly abstract pattern of acting for the sake of others’ freedom. In acting for joint reasons that hold independently of the say-so of the legislature we also do more than merely realize the practical value encrypted in abstract patterns of joint action. Provided that these abstract joint requirements are vested with enforceability351 what we also do is to reaffirm our reason to trust that these 351 This is not, of course, an empirical condition. Although enforceability is an extrinsic property of abstract joint requirements its acquisition is grounded in the normative fact that certain aspects of the activity of certain people in a given political community merit our trust that a given abstract pattern of joint action is required. In the following section D (entitled ‘Inviting and Validating Trust’) I will provide a more detailed account of the 447 requirements are supported by reasons we could all share. The latter is also an action, not a diagnostic inference. It just happens that by one and the same action—instantiating an abstract pattern of joint action—we count as doing two things: we realize an intrinsically worthwhile pattern and we reaffirm our reason to trust its worth. The second aspect of our action is a practical validation of the reason to trust and this validation is also intrinsically valuable.352 This not magic but a manifestation of the practical dimension of law construed as enforceability. Likewise, if our instantiation of an abstract pattern of joint action misfires in the sense that it allows impermissible coercion to resurface, the official or individual actions that will uphold the status of this pattern as jointly required will not only count as an upholding of the status of the joint requirement itself but also as a restoration of our reason to trust the status of this joint requirement. Again the latter aspect of these actions is also a practical validation of the reason to trust and, as I just said, this validation is also intrinsically valuable. In this regard my account departs from Julius’ agnosticism about the practical and not just merely epistemic role of law. He expresses this agnostic view when he remarks that ‘[a] bill’s becoming a law can be a normative categorical grounds of dispositional facts about enforceability. 352 In the last section of the second part of my thesis, I will offer a constitutivist argument in support of the intrinsic value of trust validation. I shall argue that trust validation is intrinsically valuable because it is constitutive of the normative possibility of realizing an intrinsically valuable type of agency, namely, doing things together for the sake of each other’s freedom. 448 reason to believe that I have a reason do the actions it calls for. It fails to follow that legislation gives me a reason to do those actions. And yet it’s pretty credible that the discursive and deliberative character of democratic lawmaking makes a practical and not just an epistemic difference for me. How it does that remains to be explained [emphasis added].’353 Whereas I do concur with Julius that abstract patterns of joint action endowed with the normative structure of jointly acting for the sake of each other’s freedom are not per se coercive and thus do not call for a coercive undoing of their hindering effect, I have expressed the qualified view that there remains a problem with potentially infelicitous instantiations of these abstract requirements. Whereas law’s task in alerting us—by way of inviting our trust—of the presence of abstract joint requirements is indeed epistemic, its role with regard to both felicitous and infelicitous instantiations of these abstract patterns of joint action is genuinely practical. In the latter case it does not alert us of the normative felicity or infelicity of these instances but validates our reason to trust that, whether good or bad, these instances refer back to an intrinsically worthwhile pattern of joint action. In that 353 A. J. Julius, Public Transit, ms. Julius’ agnosticism about the practical import of law can be associated with his conception of the publicity of reasons according to which if an action is one that I may or should do that is because of facts that hold independently of the fact that I will be doing it. By virtue of this understanding, Julius reckons, the fact that some people said or did things in a place that happens to be called the parliament is not by itself a reason to do what some people decided that I should do. This is a fair point but it ultimately misses its target. Descriptive facts about the sayings and doings of legal officials have practical import not by virtue of reshuffling the normative landscape as such but by virtue of securing our position in it. 449 sense Julius leaves the picture incomplete when he remarks that ‘[t]hat my action is required under the law doesn’t give me reason to do it. It bears an important relation to my reasons for action all the same. We could act for the reasons we have by doing what’s legally required of us in exercise of our democratic intentions.’354 D. Inviting and Validating Trust: Grounds This quest for missing links started with a concern about the possibility of reciprocity. We asked the question whether actions originating from people with whom we share no intimate background can be motivated by the same intention. A later concern was about the possibility of justified coercion. We sought ways of verifying whether actions originating from people who do not or cannot share the same intention can nevertheless be induced in a permissible way. At both previous stages it appeared that the commonality of the reasons that favored or commanded a joint pattern of action was beyond essential dispute either because there was pervasive agreement about their obtaining or because the nature of the situation left no doubt about their obtaining. In response to this granted premise we made a critical pause. Whereas there definitely are social occasions that warrant our feeling safe about our common normative ground, we must be 354 Ibid. 450 dangerously blind or naïve if we ignore the massive evidence about the opacity of many aspects of our joint challenges to the common reasons that support them. This is not just a problem about the possibility of sharing an intention with strangers nor about the possibility of permissibly coercing others into contributing to a joint pattern of action. It is about the possibility of preserving and consolidating our trust in the non-coercive normative structure of abstract , cross-temporal patterns of joint action. My strategy of presenting these three problems as though they succeed each other may have conveyed the wrong impression that they cannot overlap or that they are simply causally related. This is definitely not the case. The possibility of jointly motivated actions, the possibility of coercively directing joint and the possibility of doing things together for the sake of upholding each other’s freedom are synchronous aspects of the same reality of our living and acting together. Coming up with a solution to the problem about the possibility of trust in freedom-upholding joint action does not make the efforts to solve the other two problems causally redundant precisely because the challenges they pose pertain to different aspects of our practical identities. This very last prong of my inquiry requires more than a sample of creative imagination. The idea I aim to employ does not possess the spin of a meteorite, so to speak, as it is already embedded, if not faintly articulated, 451 in familiar discussions about the value of public reason. The contribution I aspire to make begins from the assumption that law is a fitting solution to the problem of consolidating trust in the freedom-upholding structure of abstract patterns of joint action. To repeat, these abstract patterns—as in the example of redistribution—inherit the non-coercive structure and the worth of type of agency consisting in jointly acting for the sake of upholding each other’s freedom. The way I think of formulating the “legal” solution to this problem is marked by a more or less pronounced trust in the value of metaphysical parsimony. To this effect, I have chosen to avoid solutions that either personify law as a collective agent of sorts or reify institutions and roles as if they were late additions to the fabric of our universe. A promising, as I tend to believe, strategy was to begin with the basic idea that law is called to serve as a solution to a problem that combines the predicaments of a trust deficit and impermissible coercion. In this regard, the argument I have defended is that law changes the landscape in two steps one featuring law under the guise of a social practice and another featuring law under the guise of a dispositional property. The original position, so to speak, features aspects of a legal practice that perform the epistemic task of inviting our trust in the worth of abstract patterns of joint action. If this invitation proves felicitous in the sense that it qualifies as being warranted, law assumes its role as a dispositional property of abstract normative states of affairs. The property of enforceability is such that it 452 endows its bearers with the disposition to validate the reasons for which we took the invitation of our trust seriously. The relation between these two stages—the practice stage of trust invitation and the property stage of trust validation—represent the two ends of a grounding relation. In other words, enforceability is not a bare or pure disposition in the sense that its continuous existence through time and over and above its manifestations presupposes the obtaining of a set of categorical (non-dispositional) facts that ground its persistence. I have already associated these categorical grounds with facts about the invitation of our trust qua members of a political community by aspects of a legal practice. Some secondary vocabulary might help here. A good example of a theory-neutral description of law practices is Mark Greenberg’s recurring analysis of law-determining or law practices, for short, as the set of ‘descriptive facts—paradigmatically facts about the attitudes, sayings, and doings of members of constitutional assemblies, legislatures, and courts— that are constitutive determinants of legal facts.’355 The only qualification I would add regards the identification of facts about legal content with legal facts construed as facts about the obtaining of legal obligations, privileges, powers and immunities. We may recall that a recurring topic throughout my analysis is the idea that we can dispense with legal facts at the ontological level while preserving the veridicality of our discourse about legal propositions. In this regard, my side comment to Greenberg’s descriptive 355 M. Greenberg, ‘On Practices and the Law’ in Legal Theory (2006) 12 (2): 113-36, at 114. 453 definition would be to replace talk of legal facts with talk of facts about legal content so that facts about enforceable obligations or rights can also be eligible to figure in this description. Moreover, it is common to specify our reference to law practices by making concrete reference to particular aspects thereof. The reason is that this set of descriptive facts about the sayings, doings or thoughts of actual people356 whose activity is relevant for the determination of legal content is too coarse-grained to figure en bloc in grounding claims of law. Juridical or legal reasoning serves to sample out and regiment the multitude of aspects of the propositional content of 356 Another point made by Greenberg regards the question of whether the individuation of law practices and their officials is possible without appeal to facts about legal content. The reason is that given the institutional character of the practice of law many aspects of what makes it count as legal are already enshrined or codified in legal stipulations. Greenberg is optimistic about this possibility. He notes that the use of legal-content-laden terms, such as “legislature” and “court,” in characterizing law practices is imprecise because ‘the law practices should be understood to be the underlying descriptive facts in virtue of which the relevant legal facts obtain. Since legal facts are not basic, there must be nonlegal facts that constitute the legal-content-laden practices. These more basic facts will include descriptive facts—in particular, the facts that I am calling “law practices.” For example, the fact that a legislature enacted a statute must hold in virtue of complex descriptive facts about people’s attitudes and behavior and perhaps also normative facts. (If, in order to account for legal- content-laden practices, we have to appeal not merely to descriptive facts but also to normative facts, so much the worse for the positivist thesis that the content of the law depends only on descriptive facts.) The convenience of talking as if law practices consisted in legal-content-laden facts about the behavior of legislatures, courts, and so on should not obscure the fact that there must be more basic facts in virtue of which the legal facts obtain.’ (loc. cit., fn 7). My way of responding to this challenge will be an attempt to partially individuate law practices by appeal to their capacity to make the dispositional status of enforceable legal content non-finkish. I will say more about the concept of fink and practice individuation in the main text. 454 different linguistic acts and mental states357 corresponding to ontologically diverse entities like legal texts (constitutional, statutory, executive or judicial), actions or speech acts of institutions, groups of officials or individual officials as well as various mental states attributable to actual persons and perhaps collectivities. As expected there is a raging controversy with regard to the way in which some of these aspects of law practices qualify as being fit for determining the content of the law. As it happens in the case of legal methodology we 357 Since my argument is focused on the metaphysical aspect of the structure of grounding facts about legal content rather than on our epistemological and semantic access to this content I will forgo the intricacies involved in distinguishing different types of meaning or mental content. Greenberg has dedicated a significant portion of his work to providing a compass in our navigation through different territories of linguistic and mental content. In his words, there are many candidates for a statute’s contribution to the content of the law, including different linguistic and mental contents. For example, we have what the legislature said, what it communicated, what it meant, the “public meaning” of the statutory text, and in what way the legislature intended to modify the content of the law. And there are many finer distinctions. We can distinguish content the legislature intended to communicate, content the audience reasonably would have taken the legislature to have intended, content the legislature reasonably could have expected the audience to recognize that the legislature intended to communicate, etc. Differently, we can distinguish content the legislature intended to communicate but intended not to affect the content of the law, content the legislature implicated but avoided stating in order to avoid political responsibility, and so on.’ (M. Greenberg, ‘Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication’ in Andrei Marmor and Scott Soames (eds.), Philosophical Foundations of Language in the Law, Oxford: Oxford University Press, 2011, pp. 217-56, at 220). 455 can also make a similar distinction between descriptivist358 and normativist359 approaches to identifying the legal-content-determining aspects of law practices. The former family of approaches takes this issue to be mainly a linguistic issue about the communicative content of what legal officials say, do or think leaving only limited space for questions of political morality, whereas the latter family of views occupies the opposite end of the spectrum claiming that the task of finding out the relevant aspects of law- determining practices is preponderantly normative. What is even more disheartening is that sometimes parties to this controversy come very close to rendering their dispute merely verbal as they seem to entrench themselves behind the strengths of their arguments leaving no room for making the dispute mutually intelligible. I hazard to guess that a possible route for obviating this barrier of communication is to explore how this seemingly verbal first-order epistemological dispute about our epistemic access to facts about legal content can be superseded by a meaningfully meta-epistemological or meta-interpretive dispute about the nature of legal interpretation. Whereas it is obvious that this topic is closely related to the metaphysical questions I am asking, I do not find it necessary to delve into it separately mainly because I believe that it is the metaphysics of law that should track its epistemology rather than the colloquially assumed opposite 358 For an overview of the descriptivist approach cf. Andrei Marmor, The Language of Law, Oxford: Oxford University Press, 2014; see also Scott Soames, ‘Deferentialism: A Post- Originalist Theory of Legal Interpretation’ in Fordham Law Review, (2013) 82 (2): 597-617. 359 Cf. Mark Greenberg, ‘Legislation as Communication? Legal Interpretation and the Study of Linguistic Communication’, supra note 64. 456 position.360 In what follows, I would like to capitalize on what I consider to be my findings about the mechanics of trust invitation and validation with a view to completing the picture of my metaphysical theory. If this theory could merit the reader’s attention, it could also qualify as a compass for choosing a broadly normative account of legal interpretation. But this has to be the topic of another thesis. Keeping aside these clarifications I would like to say a few more things about the concept and extrinsic nature of enforceability and the question of the meta-grounds of law, namely, the facts that along with facts about the invitation of trust generate the whole array of facts about enforceable obligations, privileges, powers and immunities in a given political community. First off, I would like to offer a definitive regimentation of the canonical form of ascriptions of enforceability. Given my preceding conceptual work, this long-awaited analysis can rest now on more solid ground. A second question regards the contexts of use in which we locate 360 A sketch of this approach can be found in Scott Shapiro, Legality, chs 12 and 13, supra note 32, pp. 331-87. Shapiro adopts the view that ‘fundamental questions about legal interpretation— what I am now calling issues of meta- interpretation—can be answered only by first determining the nature of law’ (ibid, p. 331). He then proceeds to develop his own meta-interpretive (or meta-epistemological) theory of legal interpretation which he associates with what he calls the ‘economy of trust’, namely, ‘ the distribution of trust upon which a plan is predicated’ (ibid, p. 335). The theory he sets out to defend is premised on his metaphysical account of legal planning. He writes, ‘Planning Theory demands that the more trustworthy a person is judged to be, the more interpretive discretion he or she is accorded; conversely, the less trusted one is in other parts of legal life, the less discretion one is allowed. Attitudes of trust are central to the meta- interpretation of law, I argue, because they are central to the meta- interpretation of plans— and laws are plans, or planlike norms.’ (ibid, p. 331). 457 the grounds of facts about enforceability. As I am about to argue, the grounding materials of legal content are neither epistemically inscrutable facts nor intrinsic properties of normative facts about the worth of abstract patterns of joint action. Rather their natural habitat is the domain of public reason361 and its occupants are law practices themselves. A final question regards the way I intend to integrate my theory in the previously described dispute about the mechanics of legal relevance, or, in simpler terms, about what determines the contribution of legal practices to the content of the law. As we may recall I decided to provisionally halt a complete analysis of the concept of enforceability due to lack of some intermediary premises which I now believe are available. This can facilitate the transition from the conventional reference to manifestations of enforceability in terms of conformity, exercise or enforcement to its canonical counterpart. The changes that the presence of these intermediary premises will bring about are of two sorts. The first change regards the concept’s canonical name. Thus, whereas for simplicity I would suggest that we adhere by the use of the term ‘enforceability’, its proper canonical name would be the disposition to validate trust in the obtaining of abstract joint requirements. The second 361 By ‘public reason’ I purport to identify the space between consent and normative truth (for an evaluation of consent-based argument cf. Michael Otsuka, Libertarianism without Inequality, Oxford: Oxford University Press, 2003, pp. 89-113 and A.J. Simmons, ‘Justification and Legitimacy’ in Ethics, (1999) 109(4): 739–771). Obviously this is not a space inhabited exclusively by legal practices. Other social or institutional practices also appear in the middle ground. 458 qualification regards the concepts of ‘obligation’ and ‘right’. The immediately preceding analysis delivered the idea that the type of requirements whose instances may turn out to be coercive are joint by nature rather than interactional. Consequently, what I have been more loosely referring to as enforceable obligations or duties or enforceable rights (powers, privileges or immunities) is shorthand for joint requirements, joint privileges, joint powers and joint immunities. In what follows I will break down the canonical analysis I wish to reserve for this notion in the likeness of the provisional or conventional analysis I provided earlier on: Canonical Version: (a1) A’s duty to do her part of a primary joint requirement to φ is disposed to validate our trust qua members of C that it is supported by reasons we could all share either by way of reaffirming this trust if it were the case that A φ’s or by way of restoring trust if it were the case that S sees to it that A φ’s. (a2) A’s duty to do her part of a secondary joint requirement to φ is disposed to validate our trust qua members of C that it is supported by reasons we could all share either by reaffirming this trust if it were the case that A ψ’s or by restoring this trust if it were the case that S sees to it that A ψ’s. 459 (b) A’s privilege to do her part of a joint privilege to φ is disposed to validate our trust qua members of C that it is supported by reasons we could all share either by reaffirming this trust if it were the case that A φ’s or by restoring this trust if it were the case that S sees to it that A is not prevented to φ. (c) A’s power to do her part of a joint empowerment to φ is disposed to validate our trust qua members of C that it is supported by reasons we could all share either by reaffirming this trust if it were the case that A φ’s or by restoring this trust if it were the case that S sees to it that A’s φ-ing does not constitute an instance of another person’s liability (d) A’s immunity against her partaking in a joint immunity against φ-ing is disposed to validate our trust qua members of C that it is supported by reasons we could all share either by reaffirming this trust if it were the case that A does not φ or by restoring this trust if it were the case that S sees to it that A’s φ-ing does not constitute an exercise of another person’s power Moving to the question of the grounds of facts about enforceability I would like to rehearse a point I made earlier in this chapter about the extrinsic nature of this disposition. Usually the possession of extrinsic properties is defined in contradistinction to the possession of intrinsic properties. In that sense an object has an extrinsic property F iff its being F depends on whether there are other things in the world. This is just a reversal of the general principle that if F is intrinsic then whether some 460 particular is F is independent of the way the rest of the world is. In the case of dispositions there is an ongoing discussion about whether their grounds need to be facts about their bearers’ possession of intrinsic properties. Admittedly, among natural disposition the case of intrinsic ones is the most common. For example, the micro-structural property of a vase appears to ground its fragility.362 The grounding property serves as the causal basis for fragility manifesting when triggered in the appropriate circumstances, and also grounds the continuous instantiation of that token of the property of fragility when it is not manifesting (i.e., when the vase is not breaking). In other words, the continuous existence of dispositional instances (that vase’s fragility) during their non-manifesting periods (the breaking of a vase) is grounded. That being said, the relevant literature also features an interesting array of less common cases of extrinsic dispositions, natural and psychological. For instance, Jennifer McKitrick offers an indicative list of both sparse and abundant dispositions like the disposition (of a key) to open a door, the property of weight, the disposition to dissolve the contents of my pocket, vulnerability, visibility and recognizability.363 Let us briefly examine the disposition of vulnerability. To say that something like an ancient vase is 362 S. Choi, ‘The Conditional Analysis of Dispositions and the Intrinsic Dispositions Thesis’ in Philosophy and Phenomenological Research (2009) 78 (3): 568–590. 363 In her own words, some dispositions are extrinsic in the sense that ‘perfect duplicates can differ with respect to having certain dispositions, keeping the laws of nature fixed’; see J. McKitrick, ‘A Case for Extrinsic Dispositions’ in Australasian Journal of Philosophy (2003) 81 (2): 155-74, at 155). 461 vulnerable is to say that it is disposed to suffer harm or damage as a result of an attack or external impact. McKitrick invites us to think of the case of a military target protected by a Star Wars-like defence system. She writes, ‘[t]he system has sensors that bring out defences when there is a threat, rendering the city invulnerable. However, the sensors and anti-aircraft weapons are all located outside the borders of the city and are built, maintained, and staffed by a foreign country. Should the defence system be disabled, or should the foreign power withdraw its protection, the city would change from being invulnerable to being vulnerable. However, the city might remain intrinsically the same, or internally the same in all ways that are relevant to its vulnerability’.364 It seems clear to us that the fact that the city is vulnerable is extrinsically grounded in a fact about the city’s surrounding environment, namely, the fact that it is close to enemy territory.365 Keeping track of proportions, I would like to suggest that we can engage in a similar pattern of reasoning about how it happens that in some institutional environments some abstract joint requirements acquire the disposition of being enforceable. The idea closely resembles a familiar discussion about the contingent character of practice-based obligations or 364 Ibid, p. 161. 365 Another example offered by Stephen Yabloo is the extrinsic grounding of weight. The disposition of an object’s a having a certain amount of weight of an object varies depending on the strength of the gravitational field inhabited by a; see S. Yablo, ‘Intrinsicness’ in Philosophical Topics (1999) 26: 590–627, at 611. 462 evaluations. Requirements of etiquette or membership-related obligations for members of a guild or club arise and dissolve depending on the behavioral patterns of the inhabitants of a particular social environment. By the same token, abstract joint requirements acquire or lose their enforceability depending on what transpires within places like parliaments, assemblies, constitutional courts or institutional bodies of supranational organizations (i.e. European Union). Facts about the enforceability of obligations or rights are not grounded in the intrinsic properties of these normative states of affairs but as already noted in the fact that some366 aspects of legal practices invite our trust that a given abstract pattern of joint action is supported by reason we could all share. In other words, if it weren’t for a particular process of enactment, the same obligation or right would not be enforceable, but perhaps only moral or aspirational in the 366 An important implication of this approach is that it makes the conceptual issue of what makes a practice count as legal less important. There will always be a model that will classify aberrant practices as legal so long as they exhibit some basic features of institutional structure, compulsoriness and, perhaps, of language vested with illocutionary appeals to the normative import of the actions of institutions. What matters here is that institutional activity per se cannot determine its relevance for what counts as an enforceable obligation or right. There are normative intermediaries, so to speak, that block this conceptual entailment. This point also has implications for state-based conceptions of legality. For instance, if institutional activity as such is not sufficient for the constitution of legal content there is hope that a post-national or post-state system of legality is possible. George Pavlakos and Joost Pauwelyn have taken up this challenge by defending a normative conception of coercion that regards institutional activity merely as an enabler of relational obligations; see G. Pavlakos and J. Pauwelyn, ‘Principled Monism and the Normative Conception of Coercion under International Law’ in M. Evans and P. Koutrakos (eds), Beyond the Established Legal Orders: Policy Interconnections Between the EU and the Rest of the World, Oxford: Hart Publishing, 2011, pp. 317-39. 463 sense that it ought to become enforceable.367 With these adjustments I would like to codify my claim about the grounds of law in the following thesis: Grounding Thesis: The fact that a joint requirement to φ is enforceable in S is grounded in the fact that some particular aspects of the practice of law invite our trust qua members of S that this requirement is supported by reasons we could all share. Before moving to the final question about what could possibly ground the grounds of facts about enforceability I owe a much delayed explanation of the volatility of my normative vocabulary. Throughout this chapter I have been alternately using expressions like ‘an obligation is supported by agent- neutral reasons’, ‘an obligation is supported by reasons we could all share’, 367 This is not to say, that the same fact about the location of an object always explains particular manifestations of its vulnerability (for instance, discoloration or breaking). The latter can be better accounted for by reference to the object’s intrinsic properties. In this regard, Toby Handfield distinguishes between the supervenience base of a disposition and the causal basis for the manifestation of a disposition (see his ‘Unfinkable Dispositions’ in Synthese (2008) 160(2): 297-308, at 298). By the same token, we may say on the one hand that an obligation is enforceable in virtue of the fact that some aspects of the practices of legal officials invite our trust that it is supported by reasons we can all share. This is a fact about the ‘jurisgenerative environment’, so to speak, of legal obligations. By contrast, as I plan to argue in the second part about the normativity of law, when we are invited to account for what can possibly explain actual manifestations of enforceability (namely, instances of trust reaffirmation or trust restoration) our response should rather make reference to the properties of the obligatory act-type itself rather than to the institutional environment that made it salient. On the view that I tend to favor, manifestations of enforceability (as opposed to the acquisition of the disposition itself) are explainable in terms of the agent-neutral reasons that legal practices invite us to consider as being shareable by everyone. 464 ‘the worth of an abstract joint requirement’, ‘an abstract joint requirement is endowed with the normative structure of jointly acting for the sake of each other’s freedom’, ‘an abstract joint requirement is non-coercive or freedom-upholding’. First off, I should perhaps apologize for the looseness of my prose but allow me to add that I did it in good faith. I preferred not to confine myself to a specific jargon for the reason that I could not inject more vital content into terms whose use is already established. But this is what I needed for the purpose of my argument. I wanted to bridge an array of notions in the hope that I could reach a more fine-grained description of the driving premises of my argument. At the same time I had no intention to suggest that my alternative use of terms is suggestive of a kind of reduction between terms. For instance, with regard to the concept of agent-neutral reasons368 the debate about their nature and their metaphysical relation369 to agent-relative reasons remains extremely adversarial. By virtue of my alternating descriptions I hoped that I could obviate the need to take a 368 The original use of this concept belongs to Thomas Nagel. Its seminal definition states that ‘[f]ormally, a subjective reason is one whose defining predicate R contains a free occurrence of the variable p. ..All universal reasons and principles expressible in terms of the basic formula either contain a free-agent variable or they do not. The former are subjective; the later will be called objective.’ (Thomas, Nagel, The Possibility of Altruism, Princeton: Princeton University Press, 1970, p. 91). Nagel eventually abandoned this argument but ever since there is a voluminous secondary literature that has produced many alternative accounts of this concept thus moving beyond the original conception of action as production of objectively valuable states of affairs. 369 Mark Schroeder appeals to what he calls the ‘Quantification Strategy’ suggesting a reduction of agent-neutral reason in terms of agent-relative ones. See his ‘Reasons and Agent-Neutrality’ in Philosophical Studies (2007) 135 (2): 279-306. 465 stance on this debate and at the same time I could loosen the occasional association of the term with substantive moral theories like consequentialism or more idiosyncratic concepts like impartial or object- given reasons. Perhaps I have foolishly believed that I could escape these associations on the cheap. If it turns out that during all this time I have been ignorant of a failure that has been evident to my reader I owe to make amends at least by rigidifying my substantive commitments. It is never too late, or so I hope. If it is imperative that the question about my commitment to agent-neutrality be pressed upon me, I would like to respond by saying that whereas I do believe that there exist agent-neutral reasons, I could also do without them if there are reasons provided by the fact that acting for the sake of each other’s freedom is intrinsically worthwhile.370 In other words, whereas I do believe that if agent-neutral reasons exist they can also be re-described in a way that inherits the structure of joint requirement to act for the sake of others’ freedom, I also believe that what matters is whether my reason to join you in a pattern of action that enables you to act for an agent-relative reason to participate in the same pattern is at least partly grounded in the fact that our jointly instantiating this type of agency is intrinsically worthwhile.371 For instance, 370 I owe this association between agent-neutral and public or joint reasons to A.J. Julius. 371 A. J. Julius describes this aspect of acting for a reason as ‘publicity’. Julius’ conception of the publicity of reasons boils down to the proposition that a reason is public if it is a fact such that if this fact gives A a reason to φ, then this fact about reason-giving also gives B a reason to facilitate B’s response to the reason, or in other words, to act for the sake of A’s φ. See his ‘The Possibility of Exchange’, supra note 44, p. 363-4. 466 if reasons of parental care are agent-relative in the sense that their grounds include an ineliminable reference to the particular agents involved there can still be an individual requirement in circumstances C that I act for the sake of your caring for your child because it is your child. Now this pattern is interpersonal, not joint but it already allows me to develop a normative attachment to a situation that involves your acting for an agent-relative reason. What could turn it into a worthwhile joint pattern? That requires more controversial thinking. Suppose that I am also a parent and in virtue of my role as parent of my child I have an agent-relative reason of care. Could we say that by virtue of each one of us caring for one’s own child we also count as doing together something that is worthwhile? The best answer I could squeeze out of my mind is that in doing these intimate things we also instantiate the worthwhile pattern of caring for our children. To save this description from collapsing into a more intuitive agent-neutral description like ‘promoting or securing children care’ or ‘caring for children’ we should perhaps be ready to entertain the hypothesis that in a metaphorical but normatively fathomable sense my child is also your child and your child is also my child. Whereas our caring attitudes and actions are informed and directed by reasons attached to each one’s child, the overall goodness we realize by these actions consists in making a better world for our children. 467 There is no doubt that this line of reasoning reflects an uncommon conception of the value of raising a family. I also feel neither well-versed nor adequately convinced to defend it further. But it is not a case without anthropological back-up nor is it marginal in sociological studies about the concept of kinship.372 Trying to save some space for my last remarks about the grounding of facts about legal grounding I will confine myself to declaring that I remain humbly agnostic about the deep structure of agent- relative values but I also remain highly optimistic about the possibility of sidestepping their potential clash with agent-neutral values when we qualify our perspective on the joint structure of some of our interactions. Do facts about trust invitation conclude the story about the grounding of enforceable obligations and rights? As we may recall from the previous chapter there is ample evidence that our discussion can descend to a deeper level featuring questions about what grounds the fact that facts about trust invitation ground the dispositional fact that a particular obligation or right is enforceable. At this point I am not going to re-review the literature on the question of the grounds of grounding facts. Our 372 Cf. Sally Falk Moore, ‘Cultures of Relatedness: New Approaches to the Study of Kinship; Relative Values: Reconfiguring Kinship Studies’ in American Anthropologist (2004) 106 (4): 744–46; see also Warren Shapiro, ‘What human kinship is primarily about: toward a critique of the new kinship studies’ in Social Anthropology (2008) 16 (2): 137-53. 468 recollection of the relevant review is fresh enough to skip the signposting and move directly to the nub of the issue. The question we care to ask at this deeper level of reflection is whether the fact that facts about trust invitation ground the disposition of enforceability can itself be explained. The same question can be reparsed in more familiar language. It is the question of what determines the relevance of law practices for the determination of legal content. As we already saw in the previous chapter, some regards this issue as descriptive, some as normative and some as a non-issue. What could be helpful in making sense of these diverse reactions is the correlation between legal relevance and the grounds of grounding facts. I would like to suggest a more regimented way of making sense of these two concepts. On the one hand, legal relevance is a property of facts about law practices themselves, that is, of facts about the sayings, doings and mental states of practice officials. To say that a fact about an aspect of a law practice is legally relevant is to say that this fact makes a contribution to the content of the law. On the other hand, the concept of a meta-ground refers to the explanation of relations of first-order grounding. In the present case this corresponds not to facts about law practices but to the explanation of the fact that facts about the trust invited by law practices ground enforceable obligations and rights. The connection, I believe, is clear. To talk about the relevance of law practices just is to talk about the capacity of some of their aspects to invite our trust that a given abstract pattern 469 of joint action is supported by reasons we could all share. Moreover, to ask what determines their legal relevance just is to ask what grounds or explains the fact that facts about trust invitation ground facts about legal content. In light of this association I would like to put on the table an idea about how the model of enforceability can elucidate legal relevance or the grounding of facts about legal grounding. The idea I have in mind is, once again, a bridging idea. This is to say that it is an idea about how our jurisprudential intuitions can be pumped by appeal to extra-jurisprudential concepts. I would like to suggest that what determines the relevance of law practices, or equivalently, what determines the fact that facts about the trust invited by certain aspects of law practices ground facts about enforceable obligations and rights is a fact about what essentially determines whether a categorical or non-dispositional fact can genuinely or, in the proper jargon, non-finkishly ground a dispositional facts about enforceable obligations and rights. The essentialist nature of this fact has two prongs. The first prong is about the very capacity of law practices to invite the special kind of trust we seek for. The second prong is about whether constitutionally373 trustworthy law practices can operate as non- finkish grounds of enforceability, or, in other words, whether they can make acquisitions of enforceability genuine. In what follows I will say a few things about the concept of fink and the theoretical background of 373 By ‘constitutional trustworthiness’ I mean that law practices can abstractly or in principle qualify as something that could invite trust even if in concreto they fail to perform this task in a non-defective manner. 470 essentialism about meta-grounding. Finally I will state a principle of legal relevance which will integrate both prongs. The concept of fink374 employed by philosophers of science to facilitate the distinction between dispositions grounded in facts that hold independently of what stimulates their manifestations and merely apparent dispositions whose stimulus conditions also serve as the conditions for an object’s acquiring or losing a disposition. C.B. Martin provides a classical example of a finkishly grounded disposition. He invites us to think that an electrical wire ‘is connected to a machine, an electro-fink, which can provide itself with reliable information as to exactly when a wire connected to it is touched by a conductor. When such contact occurs the electro-fink reacts (instantaneously, we are supposing) by making the wire live for the duration of the contact. In the absence of contact the wire is dead. For example, at t, the wire is untouched by any conductor, at t2 a conductor touches it, at t3 it is untouched again. The wire is dead at t1, live at t2, and dead again at t3. In sum, the electro-fink ensures that the wire is live when and only when a conductor touches it [emphasis added]’.375 In other words, to say that a disposition is finkishly grounded is to say that there can be no principled distinction between its grounds and stimulus conditions. 374 See, David Lewis, ‘Finkish Dispositions’ in Philosophical Quarterly (1997), 47 (147): 143- 58. 375 C.B. Martin, ‘Dispositions and Conditionals’ in The Philosophical Quarterly (1994) 44: 1– 8, at 2-3. 471 How could our local discussion avail itself of this concept? To see how this could go we must recall what the distinction between the grounds and stimuli or constitutive conditions of enforceability amounts to. The grounds of enforceability are still floating above the threshold of our memory. They are facts about the invitation of trust by law practices. What about the stimulus or constitutive conditions? I should perhaps jog my reader’s memory by saying that the things that stimulate, or more accurately, constitute manifestations of enforceability are the act-tokens that realize the content of duties, privileges, powers or immunities. For instance, let us suppose that there is an enforceable duty to φ and that ψ-ing is an act-token that realizes φ. Then, it follows that the duty to φ will be disposed to validate trust if ψ-ing constitutes an instance of trust reaffirmation. Retuning back to our question about the connection between legal relevance and dispositional finks I would like to re-introduce Shamik Dasgupta’s theoretical suggestion about the role of autonomous or basic facts which together with grounding facts generate derivative facts. The idea I would like to propose is that what determines the relevance of law practices, or equivalently, what explains the fact that facts about trust invitation ground dispositional facts about enforceability is an autonomous or basic fact about the essence of enforceability. Being a fact about the essence of enforceability it would be advisable to formulate its content in the likeness of a principle. Let us call this principle the Principle of Legal Relevance: 472 Principle of Legal Relevance : Enforceability is essentially such that if (1) an/some aspect(s) A of the activities of participants in a collective decision-making practice invite(s) our trust qua members of a political community C that we could all share the same reason to jointly Φ AND if (2) A does not merely collapse into performing actual tokens of Φ-ing, or coercively responding to omissions to Φ (the primary practices of doing what others do and sanctioning deviations therefrom) , or consecutively issuing particular orders to Φ (legal particularism), or attaching normative effects to past instances of Φ-ing (ex post facto law), AND if (3) A could be informed by public reasons, the joint requirement to φ is enforceable. In broad terms, a complete grounding account of legal content has the following structure: facts about trust invitation together with an autonomous or basic fact about the essence of enforceability ground derivative facts about enforceable obligations and rights. To jog the reader’s memory I will use the same figure I previously applied to other accounts of legal grounding: Grounding Fact Legal Fact The fact that an obligation to φ is enforceable in S is grounded in the fact that certain aspect of the practice of S An obligation to φ is invite our trust qua members of S that a enforceable in S joint requirement to φ is supported by reasons we could all share 473 Autonomous or Basic Fact Principle of Legal Relevance As one may notice, the above principle features two general conditions. The first (under 2) regards directly the finkishness of the content of law practices, namely, the identity between aspects of law practices that purport to figure in the grounds of facts about enforceability and the stimuli or constitutive conditions of manifestations of enforceability. The second (under 3) regards the constitutional trustworthiness of law practices, or as I purport to explain, the publicity of the content of law practices. The first condition locates three main sources (primary practices, lack of general laws, retroactive legislation) of finkish law-practice-related content that should be excluded from figuring in the grounds of facts about enforceability precisely because it is finkish. The first source refers to what I would like to call a ‘primary practice’.376 My conception of a primary 376 This should not be confused with the concept of primitive law which is a central topic of discussion, especially among sociologists of law. Some of the features of primitive law include the banalization of coercion and the fact that instead of choosing the path of normative action-direction primitive law tells people what they have done or what their deeds amount to. Christopher Kletzer astutely depicts this dimension of primitive law by noting that ‘[t]he primitive rules do not determine that Adalbert ought not to kill Wilco. Nor do they determine that if Adalbert kills Wilco, Adalbert ought to be killed. Nor do they determine that if Adalbert kills Wilco, Adalbert ought to lose his membership in the tribe. What they set down is that Adalbert by killing Wilco has already lost his membership in the tribe: killing a member is the same as, it means, loss of membership. The rules thus tell us 474 practice is very close to what H.L.A. Hart aptly describes when he refers to the example of a social rule to the effect that a man must not wear a hat inside a church.377 Hart correctly predicts that this is a social rule in the sense that the practice of repeating this type of behavior and also of criticizing deviations from it suggests that there is more than a mere convergence of habits like when most people happen to go to the movies on Saturday night. That being said, I would like to qualify my version of this example by explaining why aspects of this type of practice are finkish from the point of view of enforceability. If we supposed that the rule about baring one’s head open entering a church were “enforceable” simply in virtue of its being practiced the “enforceability” involved would not be genuine precisely because its purported grounds (namely the fact that it is practiced) and the purported constitutive conditions of its manifestation (namely particular acts of taking off one’s hat and criticizing those who do not do the same thing) are actually identical! The second source bears the name ‘legal particularism’. Obviously, there is an affinity with a theory known in metaethics as moral particularism378 which at its most trenchant states that moral actions are not governed by general moral principles. The legal analogue is not the claim that legal activity is not governed by legal principles but the theory-neutral statement what Adalbert has done.’ (Ch. Kletzer, ‘Primitive Law’, Jurisprudence (2013) 4 (2): 263-72, at 265). 377 H.L.A. Hart, The Concept of Law, supra note 18, pp. 9-12. 378 For an overview of the theory of moral particularism cf. B.W. Hooker and M. Little, Moral Particularism, Oxford: Oxford University Press, 2000. 475 that legal activity is not governed by general standards (be they rules, principles or general obligations). Again I would like to commemorate Hart’s prowess in locating the source of this problem. His example refers to a society where everyone does what Rex says. Hart associates the less than fully legal nature of this practice with the fact that upon the demise of the sovereign a new pattern of habitual obedience must be established from scratch. What I describe as an instance of legal particularism Hart identifies it as an instance of lack of secondary rules. He writes, ‘on this account of the social situation under Rex, the habit of obedience is a personal relationship between each subject and Rex: each regularly does what Rex orders him, among others, to do. It is to be observed that in this very simple situation all that is required from the community to constitute Rex the sovereign are the personal acts of obedience [emphasis added] on the part of the population.’379 Hart’s source of suspicion about the legal propriety of this practice is the problem of discontinuity noting that ‘mere habits of obedience to orders given by one legislator cannot confer on the new legislator any right to succeed the old and give orders in his place. Secondly, habitual obedience to the old lawgiver cannot by itself render probable, or found any presumption, that the new legislator's orders will be obeyed.’380 In response to this apt description of the situation I would like to make a small contribution by reparsing the problem of discontinuity in dispositional language. We may recall that a major question about the 379 H.L.A. Hart, The Concept of Law, supra note 18, p. 52. 380 Ibid, p. 55. 476 grounding of dispositions is that something at the non-dispositional or categorical level must obtain for it to be the case that the continuous existence of a disposition is grounded while it remains unmanifested. In this regard, Rex’s particular consecutive orders appear to operate both as purported grounds of the “enforceability” of his commands and as what constitutes manifestations of their actual enforcement. This finkish coincidence of purported grounds and constitutive conditions fails to ground the continuous existence of enforceability because it account for the existence of the latter when it is not manifested by acts of actual enforcement. The third source figuring in the first condition is more controversial. It refers to the problem of retroactive legislation whereby a law retroactively purports to modify the legal consequences or status of actions that were committed or relations that existed before its enactment. There can be many instances of modification including changes that actually alleviate the adversity of a legal provision as it happens in the case of amnesty laws. Moreover, an enactment may purport to have an ex post facto legal effect without itself being technically retroactive like when a statutory enactment repeals a previous enactment thereby excluding the applicability of the repealed legislation to situations to which it previously was applicable, even if such situation arose before the given enactment was repealed. It would be naïve to ignore the fact that there exists an extensive practice of retroactive legislation in cases of retroactive criminal legislation in mitius or in civil law 477 cases and that this practice does not seem to bereave retroactive legal content of its enforceability.381 I believe that a dispositional analysis can help us understand the metaphysical background of the fact that only some instances of retroactive legislation are not legally proper. As I explained, for a disposition to be finkish it must be the case that the grounds for its acquisition or loss are either identical or overlaps with the conditions that stimulate or constitute its manifestations. Given that in the legal case retroactivity regards the change in the legal effect of past instances of private or official behavior we should distinguish cases of civil law retroactivity from cases of criminal law retroactivity. In the former case we are dealing with past private actions that did not constitute at time T1 manifestations of conformity with a duty or exercise of a right. In the latter case, we are dealing with past acts of official 381 In the seminal case CALDER v. BULL, 3 U.S. 386 (1798) the United States Supreme Court examined its authority to review statutory law. The reasoning in this decision depicts in a very eloquent way the distinction between genuinely retroactive and simply retrospective laws. In the majority opinion written by Justice Samuel Chase it was argued that ‘the true distinction is between ex post facto laws, and retrospective laws. Every ex post facto law must necessarily be retrospective; but every retrospective law is not an ex post facto law: The former, only, are prohibited. Every law that takes away, or impairs, rights vested, agreeably to existing laws, is retrospective, and is generally unjust; and may be oppressive; and it is a good general rule, that a law should have no retrospect: but there are cases in which laws may justly, and for the benefit of the community, and also of individuals, relate to a time antecedent to their commencement; as statutes of oblivion, or of pardon. They are certainly retrospective, and literally both concerning, and after, the facts committed. But I do not consider any law ex post facto, within the prohibition, that mollifies the rigor of the criminal law; but only those that create, or aggravate, the crime; or encrease the punishment, or change the rules of evidence, for the purpose of conviction. 478 enforcement which necessarily constituted at time T1 manifestations of actual enforcement. With regard to the case of past private actions two things could happen: either they retroactively constitute an instance of conformity with or exercise of a newly enacted duty or right respectively or they are considered as a breach of a newly enacted duty. With regard to the case of past criminal law official actions, past acts of official enforcement cannot constitute a further manifestation of enforceability precisely because they already are manifestations of enforceability! In the latter case we have a new round of acts of official enforcement that either mollify or aggravate a past criminal act. This regimentation delivers the following four possible cases: (1) Retroactive Conformity or Exercise : a private action at T1 constitutes an instance of conformity or exercise at T2 (2) Retroactive Breach : a private action at T1 breaches a duty at T2 (3) Retroactive Mollification : vis-à-vis the same past criminal act there is a more severe act of official enforcement at T1 and a less severe act of enforcement at T2 (4) Retroactive Aggravation : vis-à-vis the same past criminal act there is a less severe official enforcement at T1 and a more severe act of enforcement at T2 With regard to case (1) it is easy to see why retroactivity is not finkish. What constitutes an instance of current conformity or exercise (stimulus) is a past private action (stimulus) and what grounds the new duty or right are 479 facts about the trust invited by the enactment of a retroactive statute (ground). In other words, stimulus and grounds do not coincide. With regard to case (2) the verdict is reversed. Retroactive legislation is finkish because what constituted a past instance of conformity or exercise is a past private action (stimulus) and what currently figures in the enactment is a characterization of the act-type of which this past private action-token was a realization as tortious (ground). In other words, the very same private act is both a past stimulus and a current ground. With regard to case (3), criminal retroactivity is not finkish. What constituted a past instance of a more severe criminal conviction was an official judgment about the graver severity and punishment of a criminal act (stimulus) and what currently figures in the enactment of a criminal law is a legislative judgment to the effect that past acts of more severe punishment should be replaced by current acts of less severe punishment. In other words, the past stimulus is not identical with the current ground because the current act of official enforcement is underinclusive vis-à-vis (its scope does not encompass) the past act of official enforcement. With regard to case (4), criminal retroactivity is finkish. What constituted a past instance of a less strict treatment of a criminal is a judicial decision (stimulus) and what currently figures in the enactment of a criminal law is a legislative judgment to the effect that past acts of less severe punishment should be replaced by current acts of more severe punishment In other words, the past stimulus is identical with the current ground because the current act of official 480 enforcement is overinclusive vis-à-vis (its scope engulfs) the past act of official enforcement. The second condition figuring the Principle of Legal Relevance reports another fact about the essence of enforceability. It puts on center stage the question of which types of law practices, rather than which aspects of their content, can qualify as being capable to invite our trust that am abstract joint requirement is supported by reasons we could all share. This constraint does not regard the content of the aspects of legislative activity but the process by which owe gain epistemic access to their content. In other words the issue at stake is not the content itself but its publicity. As I am inclined to believe publicity is not a descriptive concept, not at least within the context of determining the relevance of law practices. That being said it is not immediately clear at which point our normative appeal to publicity ascends from the level of a normative theory of law to a more politically committing level of public justification. For the purposes of my argument I would like to narrow down the extension of this concept by utilizing John Rawls’ appeal to publicity as public reason. Rawls makes explicit reference to the importance of the use of public reason by legal officials. In his words, ‘[Wh]enever judges, legislators, chief executives, and other government officials, as well as candidates for public office, act from and follow the idea of public reason and explain to other citizens their reasons to support fundamental political questions in terms of the political conception of justice 481 that they regard as the most reasonable. In this way, they fulfill […] their duty of civility to one another and to other citizens…[I]deally, citizens are to think of themselves as if they were legislators and ask themselves what statutes, supported by what reasons satisfying the criterion of reciprocity, they would think is most reasonable to enact’382 It bears emphasizing that the idea of public reason is not exclusively applicable to processes of law-making but purports to govern any aspect of our public lives. Among other practices, law-making practices must also be public in the more particular sense that the reasons practice participants are entitled to invoke in the course of deliberating on an enactment must be public. That being said, the publicity of reasons is highly pertinent to our case for a reason that Rawls does not explicitly mention is the above statement. The idea is that, specifically in the case of law, the publicity of reasons refers to the publicity of the reasons proffered in request of our trust. This brings us back to the concept of agent-neutral reasons and its relation to the concept of publicity. In this regard I sided with A.J. Julius in taking publicity to be explanatorily indispensable while declaring my agnosticism about the ontological primitiveness of agent-relative reasons. If I may hazard a guess, John Rawls’ inclusion of the notion of reciprocity in his account of public reason is very close to Julius’ understanding of public reasons as jointly freedom-upholding reasons. In Rawls’ words, ‘our exercise of political power is proper only when we sincerely believe that the 382 John Rawls, The Law of Peoples, with “the Idea of Public Reason Revisited”, Cambridge/ London: Harvard University Press, 1999, pp. 55-6. 482 reasons we would offer for our political actions—were we to state them as government officials—are sufficient, and we also reasonably think that other citizens might also reasonably accept those reasons.’383 On the other hand, Julius notes that ‘[a] person’s rational success—her discovery in thought of the reasons she faces and her follow through to action—is a value for every other person. This is not a merely spectatorial good. I do not just admire or pray for your doing what you should as I might root for the home team or appreciate a beautiful tree. My stake is practical. Your reasons help to determine what I have reason to do in my own right.’384 Despite their difference in terms of political tonality both approaches seem to revolve around a common core. Whereas Rawls suggests that “official” reasons must also be “civilian” reasons, Julius thinks that your reason may be a reason for me to act for the sake of your acting for your reason and vice versa. In the hope that my audacity can be forgiven, I would suggest that these two aspects can be fused into the idea that the reasons for which particular aspects of law practices invite our trust that an abstract pattern of joint action is supported by reasons we could all share are also the reasons that could explain the actions of legal officials. Legal publicity then imposes a constraint on what warrants our trust. These must be facts that could explain particular instances of institutional action. From the standpoint of Julius’ theory of public reasons, it ought to be the case that our reason for joint action should also be a reason for legal institutions 383 Ibid, p. 137. 384 A.J. Julius, ‘The Possibility of Exchange’, supra note 44, p. 363-4. 483 to act for the sake of warranting our trust that we should jointly act for that reason. From the standpoint of the Rawlsian notion of reciprocity it ought to be the case that the reasons that legal officials could have for saying or doing what they said or did can also be the reasons for which we qua citizens could trust that we are jointly required to φ. If reciprocity fails, then also trust fails and if trust fails there can be no ground for enforceability. In this sense legal publicity or, equivalently, the publicity of reasons of trust in the obtaining of abstract joint requirements demands that our trust and the law-making actions of legal officials can share the same normative explanation. In more formulaic terms the publicity clause states a principle that is embedded in the Principle of Legal Relevance. I will call this embedded principle the Principle of Transparency which states that: Principle of Transparency: The reasons that could explain why legal officials acted in particular ways should be transparent to the reasons that explain why these particular actions of legal officials invite our trust that we should jointly φ. 484 What this principle says is that what actually explains385 particular actions of legal officials is not ipso facto what makes those actions trustworthy. This principle is rigorous enough to exclude an array of aspects of the communicative content of official actions including idiosyncratic, manipulative or opportunistic reasons from qualifying as reasons that can warrant our trust and consequently make a contribution to the content of the law. These reasons are excluded because they cannot also explain why certain aspects of the activity of legal officials warrant our trust that we should jointly act on a particular pattern. In other words, they are not public. Mark Greenberg illustrates nicely a case of lack of publicity by bringing up the example of what he calls ‘communicative voting’. In his words, ‘[t]he case of voting is especially relevant to legislation because legislating (in contemporary multimember legislative bodies) is simply a special case of voting. Voters often intentionally communicate messages by casting their votes for particular candidates. Such communicative voting is perhaps especially common in elections that are not by secret ballot, such as in 385 I have deliberately flagged the explanatory dimension of reasons to avoid making this principle circular. In other words, what this principle says is that the reasons that people actually treated as bearing upon a question during the performance of their official role must overlap with the reasons that justify answering this question in a particular way (and not vice versa!). If the principle stated instead that the reasons that justify or would justify the actions of legal officials must be also the reasons that justify a joint requirement the argument would be hopelessly circular because it would make the actual conduct of legal officials practically irrelevant. 485 meetings of small organizations.’386 Greenberg invites us to imagine the case where the majority of the electorate votes for a particular candidate with a specified communicative intention.387 The background of the story is that a third-party candidate for a US state governorship is closely associated with the legalization of marijuana. Those who vote for the candidate intend, by casting that vote, to communicate that marijuana should be legalized. In other words, their voting behavior is explained by the fact that they treat some facts R as reasons in favor of legalizing marijuana. Their behavior is not explained by any other reason, in other words, those who vote for the candidate do not want him to be governor. Greenberg also invites us to imagine that these facts are known to nearly everyone in the state. Then the unexpected happens and the marginal candidate gets elected. Greenberg then comments, ‘[t]o everyone’s surprise, the third-party candidate receives an overwhelming majority of the votes. Because most or all of the voters in the majority have the communicative intention to communicate that marijuana should be legalized, the electorate has that intention (on any account of group intentions that would give the communication theorists what they 386 M. Greenberg ‘Legislation as Communication?’, supra note 64, p. 234. 387 I should note that Greenberg would have done better if he had chosen to modify this example as an instance of voting for a bill rather than for a particular candidate. The reason is that in the latter case we do not literally have an instance of law-making but an instance of an exercise of an already legislated power. Fortunately, this leaves intact the nub of his argument. 486 need). Presumably, no one would maintain that the election has the legal impact of legalizing marijuana: the legal impact of the election is to elect the candidate to the governorship, despite the electorate’s communicative intention.’388 Coming back to my initial remarks about the use of publicity in the legal context I would like to say a few more things about the moral of this story. The idea that Greenberg astutely depicts in this example is that what actually explains the conduct of legal officials in the exercise of their official capacity does not eo ipso become relevant in the sense that it makes a direct contribution to the content of the law. In this case the problem is not that the intentions of the electorate are not public. The example clearly states that everyone knows what is going on. Consequently, the notion of publicity we are after is not merely factual or epistemic. The problem rather is that these “public” intentions that actually explain these particular actions of the electorate are not transparent to the reasons that could explain why these particular actions (the voting of the candidate) invite our trust that marijuana should be legalized. This is why they are excluded from contributing to the content of the law. I hope that by now I have managed to make a small contribution to mapping the territory. My final suggestion is that the autonomous or basic fact about the essence of enforceability that together with facts about trust invitation grounds enforceable obligations and rights has two basic 388 Ibid, p. 235. 487 constituents. The first constituent is a constraint on finkish grounds, namely, on (aspects of the) actions of legal officials that also serve as constitutive conditions for manifestations of enforceability. The second constituent which I articulated in the form of an embedded principle of transparency is a constraint on the reasons that should be taken to inform the latter actions. I argued that these reasons must be public in the sense that they must be transparent to the reasons that could warrant our trust that we are bound by a certain joint requirement. PART TWO THE NORMATIVITY OF LEGALITY CHAPTER I 488 Resisting Some Platitudes about Practical Normativity There is little doubt that what dominates contemporary philosophical prose on practical normativity is cast, partly at least, in terms of what gives someone a reason for something. The concept of a reason has proven much promising in meeting the demand for parsimony in normative metaphysics whilst preserving our most-cherished intuitions about what is normative. There is nothing bizarre in this outcome as the three-place relation of something’s being a reason for someone to take an action or adopt an attitude is apt enough to cover a wide span of normatively challenging phenomena including instances of practical reasoning, epistemic evaluation and pragmatic inference. The versatility of reasons is precisely what makes them philosophically appealing. It is commonly said that reasons can favor, entice or even categorically demand our responsiveness to them; they can be invoked both in the context of explaining intentional action and justifying prospective decisions;389 some of them can enter into additive, comparative or 389 Those familiar with the lore about the way in which reasons come to bear on action cannot resist being engaged at some point in the debate on the relevance of the distinction between motivating and normative reasons. Motivating reasons are related to actions or attitudes by means of their providing an explanation thereof whereas our appeal to normative reasons aims at providing a justification of the same type of events. Along the path of this discussion issues of normativity arise only with respect to the concept of normative reasons even though for the sake of simplicity the attribute ‘normative’ is usually omitted but implied in the way in which reason ascriptions are employed in philosophical 489 defeasibility relations to other reasons whereas there is growing consensus that reasons serve as the reduction base of second-order thin evaluative properties like goodness. On top of this enumeration I would dare to suggest that the most prominent advantage of parsing normative claims in terms of reasons is that reason ascriptions may contain an implicit or explicit argument position for an agent variable. This vindicates the notion of the first-personal authority or the deliberative standpoint that figures in most philosophical accounts of normativity. Even the staunchest normative realist who denies that the possibility of motivation or practical endorsement is constitutively linked to normative truth, will not hesitate to accept that normative demands apply to agents irrespective of whether it is the nature of agency itself, fact about one’s ideal motivational set or some mind-independent fact that ascribes normative status to an action or attitude. There is no shred of doubt in my best understanding that reasons—of whatever sort—occupy center stage in the burgeoning literature on philosophy of normativity for an array of compelling reasons. Consequently argument. What is crucially important is that in both cases the explanandum is described as an obtaining state of affairs or event involving an agent and the performance of an action or the adoption of an attitude. Thus we habitually say that there is a reason for someone to act or behave in a particular way and we are also used to provide explanations in terms of the reason why someone acted or behaved in a particular way. Nevertheless, subscribing to the importance of the distinction between explanatory and normative reasons is only the beginning of a breakdown into cases of normativity that call for philosophical scrutiny. For an illuminating exposition on this topic, see, among others, Ulrike Heuer, ‘Reasons and Actions and Desires’, Philosophical Studies (2004), 121: 43–63. 490 the arguments I will try to advance will not be serving the purpose of disconfirming the relevance of reasons for our understanding of normativity. The idea that motivates the ensuing exposition is that the quest for an ‘accurate razor’ in normative metaphysics molded and cast in terms of ‘reasons’ is far from over. My central objection to taking ‘reason-giving’ as all that matters with regard to normative requirements and their explanation is that whereas reasons assist us in regimenting our disputes about what is capable of guiding our thought and action, normativity as such seems to include questions beyond the realm of mental or practical guidance. Differently put, it is not the concept of a reason that may end up obfuscating the intricacies of normative domains like social practices, rationality or law but our very understanding of what we aim at explaining by seeking recourse to reasons. A recurring idea in this part will be that despite their strikingly contrasting ideas with respect to the nature of legal normativity legal positivists and anti-positivists alike share a common premise that should be rejected. This premise can be epitomized in the claim that the normativity of law is essentially about action-guidance in the sense that law is supposed to tell people what to do. In the hope that this will not be perceived as an instance of intellectual nonchalance, or even worse, a way of sidestepping on the cheap traditionally respected platitudes about the normativity of law, I will venture to target this and only this common premise with a view to, 491 hopefully, reshuffling the framework of this debate.390 The alternative picture I will attempt to draw can become visible only in the light of a positive answer to a question that some legal philosophers might not even consider as meriting the status of a question. This question is not a further question beyond the one I have raised about the prospect of disassociating the normativity of law from the normativity of action-guidance. At this preliminary stage my way of talking about the notion of normative action- guidance will be more descriptive than stipulative. Following the gradual deployment of my argument I will offer a more formal definition of how to understand the connection between practical normativity and action- guidance and, consequently, how to disassociate them in the case of law. For the moment, a hint can suffice: the idea is that a normatively relevant fact can be action-guiding if and only if one and the same fact can stand in a relation of favouring or requiring to an act-type or attitude-type and also figure in the normative explanation of an occurring event, be it an act-token or attitude-token. As it will become evident further downstream, the identity between the metaphysically salient fact, so to speak, and the explanatory fact is the grounding thought behind the conception of normative action- 390 This argumentative strategy is commonly known as ‘Ramsey’s Maxim’. Granting that the opposing arguments advanced by legal positivists and natural law theorists seem internally sound with respect to their intuitive premises but their conclusions are so antithetical that a stalemate is created, it would be heuristically advisable to assume “that the truth lies not in one of the two disputed views but in some third possibility which has not yet been thought of, which we can only discover by rejecting something assumed as obvious by both the disputants’ [emphasis added] (see, Frank P. Ramsey, The Foundations of Mathematics and Other Logical Essays, Routledge and Kegan Paul Ltd., 1931, pp. 115-6). 492 guidance I will venture to put forward. The only thing I aim to challenge is not the veracity of this formal rendition of normative action-guidance but its explanatory scope. What I will be ultimately aspiring to do by providing a formal account of the relation between practical normativity and action- guidance is to make a plausible case about the possibility of expanding the available ‘normative space’ to cases of, what I shall term, ‘normative action (or attitude)-constraint’ where the favouring/requiring fact and the explanatory fact are not identical in a ‘benign’ or explanatorily valuable, so to speak, way. It is precisely the latter type of practical normativity that in conjunction with some additional premises I will associate with law. The additional premise that I need in order to fully capture the way in which legal normativity evades the standard reasons-based model points to a further step that features instances of another dimension of normative relevance that an exclusive focus on normative reasons fails to capture. I will term this aspect normative impact and I will try to unpack it by pinpointing at another case of divergence between normatively relevant facts. For the moment, it will suffice to say that the relevant divergence manifests itself between the facts that actually rationalize our actions and the facts to which we appeal in order to evaluate the way in which the moral worth of our actions is reflective of our agency. Consequently, the type of normative impact that is specifically related to law’s normative function is constitutive in nature. The idea is that there can be cases where our actions do not reflect our rational capacities as they are actually 493 exercised but help constitute our ideal or counterfactual profile such that we count, for instance, as polite or generous regardless of whether our performance entails that we have actually treated the fact that an action is generous as a reason for action. With regard to this case of divergence between the evaluation and the explanation of action I shall dedicate a separate chapter aimed at highlighting the broader context within which the constitutive version of normative impact emerges. This will be the context of practice-instantiating activity which, as expected, will feature law as one of its major exemplifiers. What animates the introductory theme of this second part is the idea that with some proper adjustments part of what seems to be a first-order dispute about the explanatory and metaphysical ambit of normative reasons can be remodeled as an instance of metanormative disagreement about the nature of practical normativity. Becoming aware of our suppressed metanormative allegiances will serve to reconfigure the way in which we venture to draw informative distinctions between different normative phenomena, including law. More specifically, my suggestion will be that the force of arguments about the metaphysical and explanatory fundamentality of normative reasons is undercut by an unpronounced metanormative bias in favor of associating the normativity of any eligible entity with its capacity to provide practical (or epistemic) guidance. This assumption is manifested at the level of actual controversy as an attempt to subject facts of various kinds (descriptive, evaluative, deontic or legal) to a test of “reason-hood”. 494 What I intend to argue is that discussions about the normative import of law have been taking place in the wrong ballpark mainly because they tend to measure the robustness of legal normativity by assessing its proximity to an ideal relation between normative reasons and the explanation of intentional action.391 Even for legal philosophers who favor a very thin account of legal normativity the grounds for their deflationary approach are a function of proximity to this region of perfect synergy between justification and explanation. In what follows I will associate this ideal standard of normative performance with what Joseph Raz has aptly described as the Nexus. In Raz’s own words, ‘[t]he normative/explanatory nexus holds that every normative reason can feature in an explanation of the action for which it is a reason, as a fact that, being recognized for what it is, motivated the agent to perform that action, so that the agent guided its performance in light of that fact.’392 In the course of this analysis I will try to demonstrate how the Nexus, instead of mapping the entire territory, points to a specific region of normative space which proves to be rather inhospitable for an array of normative phenomena including law, rationality and practices of thick 391 Veronica Rodriguez-Blanco responds to this challenge whilst remaining loyal to the value of preserving this proximity. On her broadly Aristotelian approach it is possible to bridge the gap between the authoritative nature of legal norms and the normative individuation of actions done for legal reasons by virtue of appealing to an understanding of reasons for action as good-making characteristics. See Veronica Rodriguez-Blanco, Law and Authority under the Guise of the Good, Oxford: Hart Publishing, 2014. 392 J. Raz, From Normativity to Responsibility, Oxford: Oxford University Press, 2011, p. 28. 495 evaluation. After circumscribing the region occupied by the Nexus I will try to extrapolate a more general, two-dimensional pattern393 that can deliver consecutively adjacent regions of normative space. This gradual process aims to divide normative space in four quadrants each one representing a certain combination of the features corresponding to what I have briefly described as the two dimensions of salience and impact. Immediately below, I will offer a more detailed description of how these two dimensions are supposed to work. This somehow technical digression is not of self-standing value as it purports to show how available theories of legal normativity tend to be self- classified as thinner or thicker by reference to their approximation of the purportedly “ideal” balance between justification and explanation achieved by the occupants of the Nexus quadrant. As soon as the general structure of this two-dimensional plane is firmly explained I will be in a better position to explain the way in which I will choose to allocate in this new taxonomic map the four exemplary theories of law I have been systematically referring to in the first part. In order to avoid making this allocation of theories of legal normativity look too ad hoc or fabricated I will supplement this technical digression with a brief demonstration of the explanatory force of this new taxonomy with respect to non-legal normative phenomena like rationality and the practice of attributing thick evaluative traits to agents and their actions. In this way I also hope to be able to show some 393 Cf. figure in Appendix. 496 unpronounced analogies that may have driven legal philosophers to associate the normativity of law with the normativity of rationality or the normativity of evaluative practices. Despite the fact that, as I just noted, the proposed new taxonomy aspires to be explanatorily relevant for different varieties of normative phenomena its main use in the present context will remain focused on law and the competing accounts of legal normativity I purport to associate with the four exemplary theories of law that served as a template of discussion in the previous part. In this regard I intend to use three of the four resulting quadrants as available slots for the respective accounts of legal normativity I purport to associate with Shapiro’s planning theory of law, Joseph Raz’s account of legal authority, Dworkin’s theory of law as integrity and Greenberg’s moral impact theory of law. More specifically, my local use of this taxonomy will, unsurprisingly, position Raz’s conception of law’s practical authority in the Nexus quadrant wherein I also plan to locate Greenberg’s account of binding legal obligations. Moreover, I shall try to portray Dworkin’s account of the force of law as a fitting occupant of the quadrant which I aim to present as the natural habitat of practices of thick evaluation. Finally, and again unsurprisingly, I will associate Shapiro’s account of the planning-like nature of legal normativity with the quadrant I will primarily reserve for wide-scope requirements of rational coherence and consistency. 497 I.1. Dimensions of Normative Relevance My way of subjecting the elasticity of the concept of a normative reason to a “strain test” is to venture to introduce a two-dimensional model that can account for the different ways in which facts about the world and/or normative facts can figure in our practical deliberation. More precisely, what I aim to sketch will feature two distinct, albeit interconnected, dimensions on which facts, agents and agential responses (actions or attitudes) interact. For illustrative purposes, we could represent these two dimensions as two axes generating a two-dimensional graph394 with ‘positive’ and ‘negative’ half-lines on each axis. In very broad terms the first dimension or axis purports to represent a spectrum of normative import, or as I will prefer to call it, normative salience ranging from strict constraints on action or combinations of attitudes to robust attitude- or action- guidance. The axis of salience purports to represent two different ways— schematically corresponding to its two half-lines—in which facts of any sort bear upon our actions or attitudes. The second dimension or axis purports to represent a spectrum of normative self-understanding, or as I will prefer to call it, normative impact ranging from counterfactual to actual reflections 394 Cf. figure in Appendix. To forestall a possible confusion: I do not aim to represent this two-dimensional picture in the likeness of what is currently known as the two-dimensional theory in semantics. The latter is a theoretical model aimed to represent the interaction between different functions from possible worlds to semantic values, whereas my current use is purely illustrative. One could easily replace my talk of two dimensions with a talk about aspects or manifestations of normative relevance without any conceptual loss. 498 of ourselves qua agents in or through our actions or attitudinal responses. The dimension of impact purports to represent two different ways— schematically corresponding to its two half-lines— in which the facts featuring in the first dimension (salience) can also impact our agency by enabling our responses (actions or attitudes) to serve as our normative reflections. In what follows I will provide a more detailed account of how this two-dimensional scheme is supposed to work with a view to ultimately associating it with competing conceptions of legal normativity. With regard to the first dimension of normative relevance the idea is that a fact can be action-guiding if and only if one and the same fact can stand in a relation of favoring or requiring to an act-type or attitude-type and also figure in the normative explanation of a given response, be it an act-token or attitude-token. I will term this dimension of normative relevance normative salience. As it will become evident further downstream, the identity between the metaphysically salient fact, so to speak, and the explanatory fact is the grounding thought behind the conception of normative action-guidance I will venture to put forward. The only thing I aim to challenge is not the veracity of this formal rendition of normative action-guidance but its explanatory scope. What I will be ultimately aspiring to do by providing a formal account of the relation between practical normativity and action-guidance is to make a plausible case about the possibility of expanding the available ‘normative space’ to cases of, what I shall term, ‘normative action (or attitude)-constraint’ where the 499 favoring/requiring fact and the explanatory fact are not identical in a ‘benign’ or explanatorily valuable, so to speak, way. The second dimension that I need in order to fully capture the way in which domains of normative activity like thick evaluation, law and rationality evade the standard reasons-based model points to a further step that an exclusive focus on normative reasons fails to capture. I will term this aspect normative impact and I will try to unpack it by pinpointing at another case of divergence between the facts that figure in the evaluation and the facts that figure in the explanation of our responses. A familiar case of normative impact has already been described in the example of John’s reason to visit his friend at the hospital. In that case the fact that actually explains John’s action has also been actually treated by him as a reason for action. The actuality of the performance of both the explanatory and the evaluative role results in his being evaluatively reflected or, as I will prefer to say, depicted in his action as a reasons-responsive agent. The second instance of normative impact is the most challenging one precisely because the fact that bears upon the evaluation of an agent’s moral or rational profile assumes its role counterfactually, whereas another fact may assume the role of explaining what has actually happened. In this latter case, an agent will not be evaluatively depicted in what she does but rather evaluatively constituted by what she does. The example I will use further downstream to illustrate this case will feature instances of thick evaluation. 500 In this two-dimensional scheme the Nexus will occupy only one of the four quadrants of this two-dimensional plane. By order of proximity to the Nexus I will generally associate the next two quadrants with the normativity displayed by facts involving thick evaluation and by facts about propositional attitudes respectively. As already noted, the reason that compels me to allow a short digression into seemingly irrelevant domains like rationality and thick evaluation is two-fold. Firstly, their inclusion in this new map helps to showcase that this alternative taxonomy is not ad hoc but part of a bigger picture aiming to depict practical normativity as a continuum marked by a gradual shift from the relevance of reasons to the relevance of value. Secondly, using rationality and thick evaluation as illustrative templates for how normativity is supposed to be manifested in the two quadrants that lie closest to the Nexus quadrant will reveal the unpronounced intuitions that underline the association of Shapiro’s theory about the inner rationality of law and Dworkin’s account of associative obligations with these two quadrants. I.2. Normatively Relevant Facts This alternative regimentation of the metanormative landscape is premised on two relations, one between facts and actions/attitudes (salience) and one between facts and agents (impact). The same distinction can also be used 501 adjectivally if we choose to talk about (normatively) salient facts or (normatively) impactful facts. Being aware that this new metanormative vocabulary may be the cause of unnecessary complexity or obscurity I will try to gradually unpack its explanatory added value by showing how it can help us articulate distinctions that are already “there” in our first-order disputes about whether reasons are grounded in value or vice-versa. As soon as it becomes possible to throw into sharp relief what is distinctive of this two-dimensional model, it will become less than obvious—as I aspire to show—why facts of the reason-giving sort have to dominate this new picture. Before attempting to argue for this two-dimensional model, I should begin with offering a more explicit account of what I intend to convey by talking of facts mainly because this term is broad enough to include more than what my argument is capable of accounting for. One familiar type of candidate facts is, as one may easily guess, reason- giving facts. By reason-giving facts I mean nothing more than what is more elliptically conveyed by the expression ‘(normative) reason for action’. Statements of reason-giving facts, or just (normative) reasons purport to refer to a relation that holds between a fact P, a set of conditions C and an activity of φ-ing—be it the performance of an action or the adoption of an attitude—such that, as Pekka Väyrynen remarks, ‘when there is a reason to φ, there must be something that is [emphasis added] the reason, something 502 that speaks in favor of φ-ing or makes φ-ing sensible in C’.395 Facts of the reason-giving kind are preponderantly descriptive facts about the world as evidenced by ordinary ascriptions of reasonhood like ‘the fact that it is raining is a reason to take an umbrella’ or ‘the fact that my friend is sick at the hospital is a reason to visit her’. Moreover, the versatility of normative reasons is praised widely enough to license the inclusion of some normative facts as potentially reason-giving facts. On some theoretical accounts, facts about the possession of thick evaluative properties like generosity, politeness or cruelty can stand in relations of reasonhood to act-types or attitudes.396 Moreover, facts about the possession of thin deontic properties, that is facts about what is right or wrong, are also regarded by some philosophers as eligible for furnishing distinct reasons for action in the sense that their reason-giving capacity is 395 Pekka Väyrynen, ‘A Wrong Turn to Reasons?’ in Michael Brady (ed.), New Waves in Metaethics. Palgrave Macmillan, 2011, pp. 185-207, at 186. 396 In the course of my argument I will introduce a distinction between evaluative facts about the possession of thick value by act-tokens and dispositional facts about the public evaluability of act-types as possessing thick value. In the latter case the reasons provided by these facts are attitudinal, like reasons to admire, commend or abhor a particular action. In the latter case, facts about public evaluability will be taken to provide reasons for (prospective) action. Facts about the possession of thin evaluative properties have been recently subjected to severe scrutiny resulting in their reduction to facts about the reasons provided by a set of descriptive properties of the bearers of thin value. Buck-passing analyses of properties are standardly treated as reductive. See Ulrike Heuer, ‘Explaining Reasons: Where Does the Buck Stop?’ in Journal of Ethics & Social Philosophy, (2006) 1(3): 1-25. 503 not reducible to the reason-giving capacity of the respective right-making or wrong-making properties of actions.397 What is less forthcoming is the way in which attitudinal facts—facts about what one believes, intends, hopes etc.—can be normatively relevant not in virtue of their favoring a particular response (action or another attitude) but in virtue of requiring the obtaining of a conditional. Far from being an unchallenged position, those who stand for a robust398 account of the normativity of requirements of rational coherence and consistency have 397 I should note at this point that by including normative facts—that is facts about what ought to be the case or facts about what is good or bad in some respect—in the pool of normatively relevant facts is not a tautological statement. It is perfectly possible for a normative fact to figure either in further metaphysical relations to actions or attitudes—for example, facts about wrongness are, arguably, themselves reason-giving—or in explanatory relations—for example, the same type of facts about wrongness can ground normative facts about why there is an all-things-considered reason not to act in a particular way. My choice to keep the distinction between reason-giving and right-making facts alive through my analysis serves a merely illustrative purpose and is not meant to disclose any inclination in favor or preserving the irreducibility of facts about rightness or wrongness to reason-giving facts. 398 For a more extensive defence of the wide-scope formulation see , among many, John Brunero, ‘The Scope of Rational Requirements’ in Philosophical Quarterly (2010) 60 (238): 28-49, Jonathan Dancy, Practical Reality, Oxford: Oxford University Press, 2000, pp. 70-76, Jonathan Way, ‘Defending the Wide-Scope Approach to Instrumental Reason’ in Philosophical Studies (2010) 147(2): 213-33 and Jay Wallace ‘Normativity, Commitment, and Instrumental Reason’ in Philosopher's Imprint (2001) 1: 1-26. There are many well- argued attempts at debunking the wide-scope argument, either globally or partly especially with respect to instrumental reasoning, among which Mark Schroeder’s ‘The Scope of Instrumental Reason’ in Philosophical Perspectives (2004) 18 (1): 337-64, Niko Kolodny’s ‘Why be Rational?’ in Mind (2005) 114 (455): 509-63 and most recently Matthew Bedke’s ‘The Iffiest Oughts: A Guise of Reasons Account of End-Given Conditionals’ in Ethics (2009) 119 (4): 672-98. 504 been arguing for a so-called wide-scope reading of rational requirements. More precisely, the wide-scope construal of rational requirements amounts to the claim that one can equally satisfy the requirement by revising any one of the relevant conflicting attitude-states. There is no preference either as to what outcome among the permissible ones should be brought about or as to what the ideal means for reaching an outcome is. To illustrate my point, take the case of Anna who believes that she has conclusive reason to φ, yet she does not intend to φ. The wide-scope rational requirement applicable to her case amounts to the claim that the attitudinal fact that Anna believes that she ought to φ requires of her either to acquire an intention to φ or stop believing that she has conclusive reason to φ. Rationality takes no issue with the appropriateness or advisability of her believing that she has conclusive reason to φ. As a result, Anna’s being required to intend to φ cannot be detached from the condition of her believing that she has conclusive reason to φ precisely because she can also satisfy the requirement by abandoning her initial belief. To put it more graphically, it is the case that Anna ought {if she believes she has conclusive reason to φ, to intend to φ}. The latter proposition involves an ‘ought’ with scope over the entire conditional within the brackets rather than merely over the consequent and can be further analyzed into the proposition that Anna is rationally required either to intend to φ or to quit her belief that she has conclusive reason to φ. 505 Alongside descriptive facts about the world, evaluative facts about the possession of thick properties, deontic facts about rightness or wrongness and attitudinal facts, I will venture to suggest a final addition to a more or less uncontested pool of normatively salient facts that corresponds to what I take it to be the proper way of cashing out the normativity of law. This will be the case of facts about enforceable obligations and rights within a given political community. These facts correspond more or less to what is more commonly known as legal facts or facts about the content of the law. What motivates my choice of presenting these facts as a distinct sub-class of normatively relevant facts is that instead of requiring the performance of an action or the obtaining of a disjunction of act-types or attitudes they require the manifestation of a specific kind of disposition, namely enforceability. Acting on a requirement that takes as its object a disjunction of dispositional manifestations—conform or enforce, exercise or enforce—is not normatively on par with acting on a requirement that takes as its object a disjunction of act-types or attitudes.399 399 The relevant difference can be showcased by the difference between normative explanations of actions performed in conformity with each type of disjunctive requirement. In the former case, facts about what the agent has treated as a reason for choosing act-type A instead of act-type B in order to satisfy the disjunctive requirement will necessarily figure in the normative explanation of why she did what she did. By sharp contrast, event-tokens that count as manifestations of a given disposition cannot be individuated and explained by mere reference to what individuates and explains their constituting act-tokens. My φ-ing and the manifestation of conformity with an enforceable duty to φ stand in a relation of abstract constitution such that their sortal and modal profiles diverge. What actually explains my φ-ing cannot qualify as an apt explanation of the dispositional manifestation of conformity that my φ-ing constitutes much in the same way that aesthetic properties are attributable to a statue of Goliath and not the piece of clay that constitutes it. 506 I.3. Normative Roles The main contrast I wish to draw with the standard picture advocated by proponents of the normative ‘ubiquity’ of reasons400 boils down to the fact that for the latter any divergence between the facts that acquire normative relevance in a given case is alarming or normatively suboptimal in the sense that it is indicative of a defect either in the subject’s behavior or in one’s theory that can only be amended either by deflating it or by subdividing the case at stake in such a way that different facts fully explain different cases. Cases where, necessarily, the facts that emerge as normatively relevant fail to provide reasons that are robustly response-guiding are treated either as attributable to extra-normative (epistemic error) or normative defects (weakness of will), or as an opportunity to introduce internal distinctions between different types of reasons whose content may concur or diverge depending on extra-normative contingencies such as the epistemic profile of an agent.401 400 This ubiquity can be defended either in terms of the metaphysical primacy of normative reasons or in terms of their explanatory primacy or in terms of both. For an elaboration of this distinction cf. Pekka Väyrynen, ‘A Wrong Turn to Reasons?’, supra note 7, at 188-90. 401 For the latter option cf. Mark Schroeder ‘Having Reasons’ in Philosophical Studies (2008) 139:57–71. 507 In response to these corrective strategies I will suggest that our haste to classify cases whose disambiguation is at face value recalcitrant to the model of reasons is driven by an unpronounced tendency to suppress the thought that normative relevance may be a multiply realizable property. More precisely, the idea will be that there are three distinct roles— metaphysical, evaluative and explanatory—in virtue of which different types of facts can cash out their normative relevance. To see how this more fine- grained approach is supposed to work I suggest we take an ordinary descriptive fact like the fact that John’s friend is sick at the hospital as what could be eligible to perform all three roles of normative relevance. First off, there is a sense in which the fact that John’s friend is sick at the hospital stands in a normative relation of favoring to John’s act of visiting him. This relation could be easily reparsed as the claim that the fact that John’s friend is sick at the hospital is a reason for John to visit him regularly. To put it in figurative terms, the metaphysical role of normative relevance is where our world acquires normative shape. This is perhaps the most prominent role associated not just with reason-giving facts but also with other types of normative fact like thin deontic facts or thick evaluative facts. A further implication of our assigning metaphysical primacy to the concept of a normative reason is the need to explain in terms of more basic 508 reasons the normative fact402 that something is a reason for someone to do a thing. Under this heading there arises a series of different questions some of which can be of particular importance also for legal philosophers.403 So if someone is a realist about reasons for action she could claim that what makes true the proposition that the fact that John is sick at the hospital is a reason for Mary to visit him regularly is a fact about the obtaining of a reason-for-action- relation between an ordinary descriptive fact, an agent and an act-type.404 By sharp contrast, a constructivist about normative 402 Pekka Väyrynen carefully draws a tripartite distinction in talk about reasons: facts that are reasons, the normative facts that they are reasons and the source or ground of the normative fact that something is a reason for something. For this detailed exposition see his ‘A Wrong Turn to Reasons?’, supra note 7. 403 For instance, under the heading of normative explanations one may ask whether reason- giving facts are normative or descriptive, whether these facts are intrinsically or extrinsically reason-giving or whether the facts that explain why some fact is reason-giving are analysable in terms of more basic reasons or other evaluative or deontic facts, like facts about what is right or wrong or facts about intrinsic value. 404 What is distinctive of this dimension of normative relevance is that it operates as a connecting point in the transition from one’s favourite metaphysical account of normative properties to an account of practical reason. Questions of normativity at this metaphysical dimension indicatively include many topics of which I will only mention a few: the relation between agent-relative and agent-neutral reasons (Mark Schroeder, ‘Reasons and Agent- Neutrality’ in Philosophical Studies (2007) 135: 279-306), the reducibility of other deontic or evaluative properties into reasons (Jonathan Dancy, ‘Should We Pass the Buck?’ in Royal Institute of Philosophy Supplement (2000) 47:159-173 and Matt Bedke, ‘Passing the Deontic Buck’ in Russ Shafer-Landau (ed.), Oxford Studies in Metaethics, Volume 6, Oxford University Press, 2012, pp. 128-52), the notion of weight and whether it is figurative or an actual property of reasons (Mark Schroeder, ‘Holism, Weight, and Undercutting’ in Noûs (2011) 454(2): 328-44), the need to refine the reason for relation by further distinguishing between requiring, favouring and maybe enticing reasons as well as the question of what is the normative relevance of our epistemic relation to reasons. 509 reasons could resist the temptation of allowing a reason-relation to figure in her truthmaker explanation of a target normative fact and stipulate that the proposition that the fact that John is sick at the hospital is a reason for Mary to visit him is made true by the fact that the relevant judgment can ‘withstand some (specified) procedure of scrutiny from the standpoint of some (specified) set of further normative judgments’.405 The point I wish to make in this conjecture is that irrespective of whether someone is willing to take the reason-for-action relation as metaphysically and explanatorily fundamental there exists a dimension of normative discourse on which we encounter predications of this relations as purported reports of how the world is from a normative viewpoint. A second role that is frequently assigned to normatively salient facts is that of being possessed, so to speak, by agents. The standard metaethical vocabulary for this role uses the expressions having a reason to act or, equivalently, treating a (putative) fact as a reason to act in a particular manner. Holding our exemplary fact about John’s friend fixed, we also care to ask what it is for John to treat the fact that John is sick at the hospital as a reason for her to visit him. What is distinctive of this kind of practical possession relation is that an agent that has a reason to act406 is also 405 Sharon Street, ‘Constructivism About Reasons’ in Russ Shafer-Landau (ed.), Oxford Studies in Metaethics, Volume 3, Oxford: Oxford University Press 2008, pp. 207-46, at 208. 406 According to a standard approach having a reason to φ is a conjunctive relation in the sense that for one to have a reason to φ is for there to be a reason for one to φ that one has. At first sight this looks more like an epistemic, rather than practical, relation that an agent bears to facts that favor φ-ing but its practical relevance can become immediately 510 thought as having a certain amount of a certain kind of control over an action favored by a reason in the metaphysical sense.407 Actually treating or being counterfactually capable of treating something as being normatively relevant in some way is a psychological fact about one’s actual or counterfactual motivational stance but it falls short of illustrating how facts “possessed” by agents can have any normative implication.408 My suggestion with regard to how to fully capture the normative importance of this agent- related aspect of facts is to inquire into the evaluative connotation of the deliberative control assumed by a “fact-possessing” agent over her action. Instead of thinking of control in terms of ability conditions, we can enrich our conception by advancing the idea that for it to be the case that an agent apparent as soon as we seek to explain instances of acting for a reason. Instances of acting for a reason seem to be logically explained as instances of exercising one’s capacity to act for a particular reason. The latter capacity is conditional on one’s actually having the reason in question in the sense of being aware of the facts that are reasons in the metaphysical sense of favoring a particular action. Acting for a reason R asymmetrically entails that one is in a position to act for R which by its turn entails that one has R. 407 This is not to say that the status of something as being a reason is dependent on its being possessed by the agent to whom it applies. This is a further substantive issue that some philosophers wish to address by declaring their allegiance to internalism about reasons. 408 I am deliberately omitting the complications arising in cases of epistemic error with regard to what facts actually obtain. This is a puzzle of its own but suffice it to say that necessarily, given the appropriate background conditions, reasons in the metaphysical sense can be—even though they need not always be—reasons in the practical and consequently in the explanatory sense. For two alternative approaches to the problem of falsely believed facts, see: Mark Schroeder, ‘Having Reasons’, supra note 13 and Pamela Hieronymi, ‘Reasons for Action’ in Proceedings of the Aristotelian Society (2011) 111: 407- 27. 511 is in deliberative control of her action is for it to be the case that her action becomes evaluatively reflective of her in the sense that she can be characterized as being responsive to reasons or praiseworthy in a more robust sense409 on the basis of the facts she treated as counting in favor of acting. On this approach, to actually or counterfactually have a reason, or equivalently, to actually or counterfactually treat some facts as reasons in the metaphysical sense makes a fact normatively relevant in the sense that it can serve as a standard of appraisal of an agent’s profile or character for what she has done or failed to do precisely in respect of the fact(s)—that is, the reason-giving facts—she had or could have.410 Returning to John’s 409 These more robust cases involve instances of treating normative (in the practical or epistemic sense) facts as reasons for action or the adoption of a certain attitude. To give an example that I will explain in detail further below, counterfactual instances of treating a thick evaluative fact like ‘Φ-ing is courageous’ as a reason for action operate as standards of appraising agents in the way suggested by a given thick evaluation, e.g., A is courageous in virtue of the fact that he Φ’d and that he could have treated the fact that Φ-ing is courageous as a reason for action. 410 An important caveat is in order: throughout this exposition I intend to associate the normative relevance of the actual or counterfactual possession of facts qua reasons for action with the evaluative question of how agents are reflected in their actions, not with the metaphysical question of whether for it to be the case that R is a reason for A to Φ it is necessary that A be actually or counterfactually motivated by the normative force of R. The latter question is a substantive one; for instance, there are roughly two versions of reasons- internalism. According to the actualist version if something is a reason for someone to act in a particular way, then it follows by necessity that she actually is somewhat motivated to do A. Counterfactual versions make the weaker claim that if there a reason for someone to do something, then it follows by necessity that she would be motivated to some degree under some ideal conditions. Both versions regard the relevance of facts about one’s actual or counterfactual motivation for the grounding of claims about the existence of normative reasons. For alternative specifications of these ideal conditions cf. Finlay, Stephen and Schroeder, Mark, "Reasons for Action: Internal vs. External", The Stanford Encyclopedia of 512 example, his actually treating the fact that friend is sick at the hospital as a reason to visit him or, equivalently, his actually having a reason to visit him at the hospital entails that he is properly responsive to the existence of normative reasons. One and the same fact about his friend’s condition has so far served as a reason for John to act in a particular way and as a standard for evaluating John’s profile qua agent. The third role that can be assumed by normatively relevant fact is a composition of the other two. The question pertaining to this role is usually cast in metaphysical terms but its nature is such that it ultimately reveals a more elaborate way of thinking of how normativity figures into practical reason. The intuition behind this manifestation of normative relevance is that we don’t only care to justify our actions or attitudes and evaluate ourselves as agents but we also care to explain a series of event types like acting for a normative reason411, or instantiating (through one’s actions) a normative practice, satisfying a requirement of rationality or acting in conformity with the law. Supposing that the fact, say, that John’s friend is sick at the hospital obtains and that John treats this fact as a reason in the evaluative sense explained above, then this same fact, apart from standing Philosophy (Winter 2012 Edition), Edward N. Zalta (ed.), URL = 513 in a metaphysical relation of favoring to John’s act of visiting his friend and in a relation of evaluative possession by John, will additionally stand in an explanatory relation to the act-token of ‘John’s having visited his friend at the hospital on Thursday evening’. Again there arises the question of how this explanatory role assumed by facts is normative in any informative sense. To adopt the view that facts can causally explain an action is to go back to a point where a conception of facts as reasons for action is dispensable unless one is willing to re-conceptualize the normative pressure exercised by reasons as a type of causation. In order to preserve the normative relevance of facts we need to accept that facts in the relevant sense of reason-giving facts can operate as normative grounds of atomic facts about what one did, thought or felt. On this approach the same facts that favor a prospective action can rationalize, make morally intelligible or right actual instances of acting for reasons such that the link between the actual acting and the question of whether the action was called for in the first place remains unsevered.412 412 The reason why this type of events—acting for a reason—merits special attention is that in a series of cases the reasons that actually explain and/or favor action and the agent’s own reasons for acting—that is, the facts or putative facts the agent herself treats as normative reasons—seem to diverge. Reasons of space do not allow an extensive digression into the casuistry accompanying the debate on how something’s being a reason for someone to do something can radically diverge from someone’s having a reason to do something. What merits mentioning, however, is that the central case for instances of this type of divergence is that of epistemic error as when I am standing around at a cocktail party asking for a glass that I believe to contain gin and tonic whereas in fact it is full of gasoline. Under such circumstances there seems to be a reason that favors my not drinking its content while at the same time this reason cannot be ascribed to me given my epistemic deficiency. 514 Anyone who is willing to take on board the idea that a fact can display its normative relevance in three distinct ways (metaphysical, evaluative and explanatory) can also entertain a further hypothesis as to why reason-giving facts take pride of place in so many recent theories of normativity. The hypothesis I have in mind is fact-convergence, or synchronicity; the same descriptive fact that favored John’s visiting his sick friend and served as a standard of his appraisal as a reasons-responsive agent is also the fact that figured as occupying the position of the explanans in the question of why John went to the hospital on that particular day and time. Under ideal conditions, a reason-giving fact seems to be such that it can perform all three roles and this convergence undoubtedly attests to the versatility of the concept of a normative reason. The problem, however, begins as soon as we take this fact convergence as evidence of how anything that qualifies as normatively felicitous is supposed to function. The tendency to frame discussions about practical normativity in more or less reasons-based terms bears testimony to a failure to see that there can exist instances of one and the same normative phenomenon where the fact that plays the metaphysical role is not identical with the fact the plays the explanatory role. In the relevant position I will associate the actual convergence of these two roles with the action-guiding half of the axis of normative salience and their actual divergence with the action-constraining half of the same axis. At the same time the alternative 515 model I aspire to defend is also well-suited to anticipate instances of one and the same normative phenomenon where the fact that plays the evaluative role is not identical with the fact that plays the explanatory role. Moving to the other axis of normative self-understanding or impact I will associate the convergence of these two roles with our actual depiction qua agents in our actions and their divergence with our counterfactual constitution qua agents by our actions. My interim conclusion will be that the standard approach to practical normativity is blind to the possibility of there being ‘benign’, so to speak, divergences either between the facts that metaphysically bear upon our responses and the facts that explain their actual instances or between the facts that serve as standards of our evaluation qua agents and the facts that explain our actual conduct. More precisely, I shall argue that the standard approach correctly predicts that what is distinctive of reason-giving facts is that in ideal conditions all three roles of normative relevance are performed by the same reason-giving fact and under the same actual circumstances. Returning to my previous remark, the problem begins the moment friends of the standard model are called upon to evaluate the nature and scope of potential divergences either among facts or among the modal profiles of the circumstances of their use. According to the standard approach any divergence between what occupies each role-position is treated either as an indication of a normative defect in how an agent deliberates or as evidence for the need to be ontologically expansive in our use of the concept of a 516 normative reason.413 At any rate, what undergirds this approach is an effort to solve any normative inconsistency within the conceptual realm of reasons even if this necessitates a moralistic understanding (non-defective and defective reasons) or inflationary ontology (objective and subjective reasons) of reasons. CHAPTER II A Digression into Rationality and Thick Evaluation 413 Mark Schroeder defends the view that the impasse we encounter whenever the reasons that exist as a matter of fact and the reasons we actually have diverge can be overcome by accepting that there are two cross-cutting reason relations at stake—the objective reason relation and the subjective reason relation. See his ‘Having Reasons’, supra note 13. Another strategy is to treat cases of divergence as normatively defective and suboptimal and insist that properly speaking the reasons that favor our action must also be the ones that we have and the ones that we ultimately invoke in explaining our action. The most fluent defense of the latter view is Joseph Raz’s ‘‘normative-explanatory nexus’’. This is roughly the claim that for a fact to qualify as reason-giving it must be capable of both justifying and explaining a person’s actions when she acts for the reason. The idea behind this unified approach is that the person’s recognition of the reason or her treating a fact as a reason for action is crucial to the quality of normative explanation involved in actions done for reasons. See, Joseph Raz, From Normativity to Responsibility, supra note 4. 517 At this stage I will not regurgitate any further stipulative claims as they may add more confusion or justify disbelief in the worth of suggesting an alternative taxonomy. Instead, I will venture a short digression in the hope that it will facilitate our understanding of how this alternative conceptual scheme can do better work both in terms of explanatory neatness and metaphysical parsimony. An instructive way to verify this hypothesis is to test whether this new scheme can help elucidate two persisting problems plaguing those who remain skeptical about the metaphysical and explanatory primacy of normative reasons. The first question regards the prospect of vindicating the robustness of normative requirements that fail to operate as full-fledged normative reasons. The second question regards the reducibility of thick evaluative concepts into concepts involving only thin evaluation plus some descriptive criteria. The latter question is crucially related to the putative primacy of normative reasons precisely because, if the reductive hypothesis proves correct, thin evaluative concepts like good or bad are particularly vulnerable to objections of the buck- passing sort. My idea is that what should motivate and legitimize the choice to reconsider the explanatory virtues of available taxonomies of normative concepts is the justified belief that one’s available normative concepts in the precise pattern on which they are tabulated cannot sufficiently account for all types of normatively infelicitous cases. Domains of normative activity like law, social practices involving the attribution of thick evaluative traits 518 to agents and their actions as well as rationality are most probably—as I intend to argue—the primary collateral ‘victims’ of available normative taxonomies precisely in the sense that attempts to model their normative function on the template of practical reasons as commonly understood fail to showcase what is precisely at stake when their requirements are being transgressed. In what follows, I will provisionally bracket the way in which law falls into this picture and instead focus on the more familiar cases of thick evaluation and requirements of rationality that have come to ascendancy lately, and are still avidly disputed.414 More precisely, I will try to demonstrate how the two most controversial aspects of this alternative taxonomy415, namely, the concepts of response- constraint (as opposed to response-guidance) and constitutive impact (as opposed to depictive impact), can explain in non-reductive terms the tension between our responsiveness to normative reasons and ascriptions of rationality and thick evaluative properties. On the one hand, the normativity 414 Niko Kolodny, for instance, argues that the normativity of requirements of rational coherence is only apparent and can be easily deflated by semantic means (see his ‘Why be Rational?’ in Mind (2005) 114 (455): 509-63, at 557-60). Mark Schroeder appeals to a distinction between objective reasons based on facts and subjective reasons based on beliefs and proceeds to analyze the latter in terms of the former. In this reductive scheme, the normativity of rational requirement is represented as piggybacking on the normativity of objective reasons (see his ‘Means-End Coherence, Stringency, and Subjective Reasons’ in Philosophical Studies (2009) 143: 223–48. For a reconciliatory approach cf. Errol Lord, ‘The Coherent and the Rational’ in Analytic Philosophy (2014) 55 (2): 151-75. 415 Cf. figure in Appendix. 519 of requirements of rationality is commonly questioned on the grounds that rational requirements seem to tolerate a kind of normative asymmetry between the different ways in which they can be satisfied. In other words, in a given context, not all ways of satisfying a rational requirement are such that they can guarantee the rational justifiability of someone’s response. On the other hand, there is growing suspicion that thick evaluative properties like being generous or cruel cannot by themselves ground the truth of claims of global evaluation of a person’s character or behavior precisely because their descriptive component is always revisable in the light of goodness simpliciter or (for friends of reasons-reductivism) of reasons all things considered. In what follows I will offer a “benign” explanation of these cases whilst preserving the intuitive appeal of the objections just described. The first task will involve an explanation of the normative asymmetry of rational requirements in terms of attributing to them a response-constraining, rather than response-guiding, function. The second task will employ the concept of constitutive impact in order to explain how the practice of thick evaluation is itself partly constitutive of the normativity of thick properties. On pain of sounding unnervingly repetitive I will make one final point about the potential payoffs of this digression. Besides the need to guard this alternative taxonomy against the obvious objection of solely serving the purposes of a local argument there is a further reason that dictates this detour. In the immediately preceding paragraph I committed myself to 520 unpacking the connection between what is generally regarded as a peculiarity about rational requirements and thick evaluation with what I take to be the most controversial aspects of my alternative taxonomy in the hope that this association will prove mutually beneficial for proponents of the irreducibility of some domains of normativity to reasons as well as for the purpose of vindicating the general explanatory force of this alternative taxonomy. The first aspect is about the possibility of a non-response-guiding type of normativity (response-constraint) which I explicitly singled out as a promising way of explaining the normative asymmetry of rational requirements. The second aspect regards the possibility of counterfactual evaluation of agents (constitutive impact) which I also intend to harness in the service of explaining the irreducibility of thick evaluative properties. The payoff of this digression will become visible later on because, as I intend to argue in detail, legal normativity is a fusion of these two aspects (response-constraint and constitutive impact)! For reasons that will become apparent further downstream, the same fusion will also explain why I have chosen to position law in the farthest (with respect to the Nexus) quadrant of this two-dimensional taxonomical map. II.1. Rational Requirements, Asymmetry and Response-Constraint The question which I will attempt to associate with the issue of the normative robustness of rational requirements is as simple that: what goes wrong if a rational requirement of coherence or consistency is violated? The 521 only (widely accepted) premise of this question is that if there are normative requirements of any kind, it must be possible to violate them, or differently put, it must be possible to act or behave otherwise. At a later step I will be in a better position to show how this question about the wrongness, disvalue or grounds for reasonable criticism associated with the violation of a normative requirement dovetails with the question of whether there is any need to inject new distinctions within an already convoluted normative universe. At first approximation we could ask whether there can be a distinct class of normative requirements on action or attitudes such that the wrongness of their violation does not analytically entail a standing to hold someone accountable and/or address demands with respect to what counts as a way of failing to satisfy a normative requirement but with respect to what counts as a way of making the obtaining of an intrinsically valuable kind of agency normatively impossible. The latter case is not a cryptic reparsing of a standard association of moral responsibility with moral obligation as one may reasonably infer from the apparent imputability of an act of making the satisfaction of a normative requirement impossible. To see why this is not the case I will take the liberty of licensing a short detour into the intricacies of rational requirements that can also adumbrate the story I purport to tell about law and its relation to normative action-guidance. 522 More precisely, I will try to illustrate the distinctness of the latter case by resorting to a topic frequently brought up in discussions revolving around the normativity of rationality. It is customary to say that rationality requires us not to believe contradictions, to intend the means necessary to our intended ends, to have transitive preferences and to preserve a specific mode of coherence between our intentions and our normative beliefs. For ease of exposition, I will single out the so-called ‘enkratic’ requirement of rationality416 which in its most simplistic form is represented by the following schema: rationality requires of you that you intend to φ if you believe you ought to φ. What is particularly interesting in the case of requirements of rationality in general is that sorting out their normative status crucially depends on sorting out their precise logical form. More specifically, philosophers who are sympathetic to the possibility of there being robustly normative requirements of rationality take it that the proper logical form of such requirements allows deontic modals to take scope over entire conditionals rather than mere consequents. The upshot of this wide- scope approach is that it allows a novel distinction between what is required of us by rationality and what counts as a way of actually satisfying this requirement. Even more surprisingly, the same requirement cannot settle what actually counts as the appropriate way to satisfy it in a given circumstance. 416 The term “enkrasia” is coined by John Broome. For a concise presentation of his argument on the semantics of the enkratic requirement see his ‘Rationality’ in Timothy O’Connor and C. Sandis (eds.), A Companion to the Philosophy of Action, Wiley-Blackwell, 2010, pp. 283-92. 523 This leaves us with a conundrum: some requirements of rationality can be “silent” on their optimal satisfaction yet remain stringent with regard to the irrationality of their possible violation. Take the example of the enkratic requirement. Suppose that A holds a patently immoral belief. From the point of view of enkratic rationality she is required not to jointly hold that belief and not intend to act on it. Both intending to act on a normative belief and revising/dropping it equally count as pro tanto legitimate ways of satisfying the requirement at hand such that there is no violation of the enkratic requirement as long as A chooses to respond in either of the two ways mentioned. But it is certainly the case that something goes wrong if in A’s example she chooses to intend to act on her immoral belief instead of dropping it. The latter normative asymmetry cannot be captured by what makes the enkratic requirement itself stringent. Differently put, there seems to be a divergence between what accounts for what makes akratic behavior as such normatively suboptimal and what accounts for what makes a pro tanto rational response to the enkratic requirement inappropriate all things considered.417 Whereas it is always the case that jointly holding a 417 The same point has been expressed in slightly different terms by Jonathan Way. Granting that only a wide-scope reading of coherence requirements of rationality can accommodate a robust reading of their normative force, Way remarks that the wide-scope view on requirements of rationality ‘maintains that local irrationalities are irrational as such. They are not irrational only because they involve independently irrational attitudes…The distinctive Wide-Scope claim is that local irrationalities are irrational even if none of the elements constituting them is irrational. The problem is in the combination [emphasis added]’ (in Jonathan Way, ‘The Symmetry of Rational Requirements’ in Philosophical Studies (2011) 155:227–239, at 230. 524 normative belief and failing to acquire a corresponding intention counts as a violation of the enkratic requirement, it can be the case that an actual intention to act on that normative belief or an actual revision/rejection of the same belief counts as an instance of irrationality all things considered. Keeping this example in the background it is an opportune moment to reflect on the informative value of the distinction I ventured to draw earlier on between holding someone accountable and/or addressing demands with respect to what counts as a way of failing to satisfy a normative requirement all things considered and holding her accountable with respect to what counts as a way of making a particular type of agency normatively impossible. If we suppose that in the case of the akratic agent the content of her normative belief is morally opprobrious and that she actually holds that belief and at the same time lacks the intention to act on it, a candidate ground on which we would blame her for being akratic is not that she holds a morally unacceptable belief but that, for instance, as a result of her holding a normative belief that is unaccompanied by an a corresponding intention she fails to be a self-governed agent or deliberator.418 This is not to say that we will not also blame her for the content of her belief but the 418 This is the justificatory ground employed by Michael Bratman in his defense of the normative robustness of requirements of rational coherence and consistency. It doesn’t matter for our current purposes whether this idea about the intrinsic value of self- governance is the best vehicle to guard wide-scopers against the heap of objections to the normative robustness of rational requirements. What is of relevance is the fact that self- governance points to a multiply realizable type of agency that can supervene on concrete deliberative choices, actions or adopted attitudes. See Michael Bratman, ‘Intention, Practical Rationality, and Self-Governance’ in Ethics (2009) 119: 411–443. 525 grounds we will invoke are not coextensive with our reasons for taking issue with akratic behavior! The same point can be made by remarking that for a class of normative requirements there is no symmetrical relation between the normative consequences of their violation and their satisfaction, or as Jonathan Way puts it, ‘[wide-scope] requirements are importantly asymmetrical: you are necessarily irrational if you violate a requirement, but not necessarily rational if you comply with a requirement’.419 That being said, I would like to invite the reader to provisionally take on board the idea that the normativity of non-response-guiding normative requirements is a function of their making a type of intrinsically valuable agency normatively possible rather than of their requiring a particular response (action or attitude). This is precisely the type of normative round I will also associate, at a later stage, with violations of legal normativity. The bridging element that can explain why the dimension of normative salience is not limited to case of convergence between the facts that favor a response and the facts that normatively explain its occurrence is the fact that it is a separate normative question which of the ways of realizing an intrinsically valuable type of agency is normatively appropriate in a given context. By talking about separation I do not intend to downplay the importance of ultimately resolving our problems of rational choice in the normatively optimal way. All I am trying to say is that the resolution of this problem is perfectly compatible with the response-constraining role of 419 Jonathan Way, ‘The Symmetry of Rational Requirements’, supra note 4, at 230. 526 requirements of rational coherence and consistency.420 The latter serve to limit the scope of our rational responses to a domain of options that make an intrinsically valuable type of agency like self-governance normatively possible irrespective of what the specific context will deliver as the best choice in a given situation. On this picture the divergence between the facts that require the obtaining of a given conditional and the facts that normatively explain its satisfaction accurately overlaps with the distinction between the intrinsic value of a multiply realizable form of agency and the value of its actual realizations. II.2. Thick Evaluation, Global Judgment and Constitutive Impact Moving to the second case I intend to use the same contrastive example about John and his friend in order illustrate how constitutive impact manifests itself in a way that lends support to the normative “autonomy” of thick evaluation. For simplicity’s sake let us assume again that the first fact is that John’s friend is sick at the hospital and let us contrast this fact with 420 Jonathan Way makes a similar point when he remarks that rational requirements are always supplement by ‘basing principles’. The facts about the latter principles assume the role of normative explanation of occurrences that satisfy requirements of rationality. In Way’s words, ‘[b]asing principles specify whether an attitude, or set of attitudes, is an appropriate basis for another attitude… Wide-Scope requirements are not directly concerned with basing, and so need to be supplemented with independent basing principles. But then we can expect those principles to explain this type of asymmetry’ (see Jonathan Way, ‘The Symmetry of Rational Requirements’, supra note 4, at 231). 527 the fact that John’s taking the first bite at the beginning of a dinner he is hosting is polite in a context where an etiquette code E applies. The first fact is the same ordinary descriptive fact that figured also in the previous case. The second fact, however, is a fact involving the attribution of a thick evaluative property which for brevity I will refer to as a ‘thick evaluative fact’.421 Now suppose that in a given context C John actually treats the fact that his friend is sick at the hospital as a reason to visit him. Acting in recognition of the reason-giving property of this fact serves as a depiction of John’s actual responsiveness to reasons.422 In other words, the fact that 421 For simplicity I have deliberately omitted a distinction I plan to introduce further downstream. Literally speaking, the type of fact about thick value that I will associate with reasons for action is dispositional by nature in the sense that it is about the disposition of certain act-types to be publicly evaluated as having thick value. Conversely, facts about the possession of thick value by act-tokens will provide reasons for certain types of attitudes, like admiration, commendation, indignation, condemnation etc. For now I have decided to suppress this difference for two reasons. Firstly, this distinction requires some additional premises and it is not a received view about the structure of general facts about thick value. Secondly, the topic of this section is the evaluation of agents for what they have done rather than the direction of their prospective actions. 422 This is how Joseph Raz encodes the meaning of one’s rational capacity to respond to reasons. This is not the only available way to understand how our actions or responses can be evaluatively reflective of who we are. More robust approaches may appeal to an evaluative aspect of responsibility, rather than mere responsiveness to reasons, such that to act out of awareness that a particular fact is a reason for action entails one’s status as a rationally, morally or prudentially praiseworthy agent. David Shoemaker describes this dimension of (moral) responsibility as attributability; see his Attributability, Answerability, and Accountability: Toward a Wider Theory of Moral Responsibility’ in Ethics (2011) 121 (3): 602-32. An even more robust account can appeal to the value of freedom or personhood. There are various strands of thought in this ballpark all of which converge in a Kantian conception of rational action qua realization of freedom. On this view acting out of awareness that a particular fact is a reason for action involves a normatively relevant mode of self-understanding. In acting for reasons we represent ourselves as free agents or 528 simultaneously serves as a standard of his appraisal as a being responsive to reasons and as an explanation of John’s conduct is actually “possessed’ by John. We can now contrast this example with the case where in a given context C—where a particular set of etiquette rules applies—the fact that it is a token of politeness that the dinner host takes the first bite is a reason for John qua host to take the first bite. In this case nothing compels John to treat the fact that taking the first bite is polite as a reason to act accordingly because nothing about what can serve as a standard of appraising his behavior as a polite host depends on what actually explains the event-token featuring John as someone who takes the first bite. To put it more graphically, the route to explaining John’s actual behavior might have a surprising end. For instance, John might have taken the fact that he is excruciatingly hungry as a reason to take the first bite but even if that were the case he would still count as polite from the point of view of etiquette. By sharp contrast, if John had not acted as he did for the reason that his friend was sick at the hospital—for instance, he might have wanted to uphold his esteem as a caring friend among his peers—his act would fail to reflect him as being responsive to reasons. persons such that facts about actions done for reasons are registered in our agential profiles as moments of being free or a person; for this more robust view cf. A.J. Julius, ‘Independent People’ in Sari Kisilevsky and Martin J. Stone (eds.), Freedom and force: essays on Kant's legal philosophy, forthcoming with Hart Publishing, 2014 (pre-publication copy available at: http://www.ajjulius.net/papers/independent%20people.pdf. 529 Interestingly so, this contrast can be structurally reflected in the modal contexts in which these two facts figure as normatively relevant. In the first case the fact that serves to evaluate John’s response to the situation favors John’s action is also the fact that explains his actual response precisely because this same fact is actually treated by John as a reason to visit his friend. This is precisely the case with depictive impact where one and the same fact plays both the evaluative and explanatory role. By sharp contrast, in the second case the fact that favors his action is only counterfactually implicated in John’s evaluation as a polite host!423 As a result, it will not be identical with the fact—e.g. the fact that he felt very hungry—that explains John’s actual conduct. As I intend to argue this is not a mere coincidence but a telling indication of how thick evaluations impinge upon our 423 Reasons of space compel me to suppress some aspects of this phenomenon. An important premise is that in the case of depictive impact reason-giving facts will be non- normative, non-evaluative facts about the world. This qualification is not meant as a stipulation but as a leap of metaphysical parsimony. With regard to the exclusion of non- normative facts like facts about what is right or wrong all things considered there seems to be an instance of “double-counting” for the reason that, as Dancy explains, ‘what there is overall reason to do (and note that ‘reason’ in this phrase is not a count noun) is to talk about where the contributory reasons come down—on this side or on that…These verdicts do not themselves specify further reasons (of an overall sort), on pain of changing the very situation on which they pass verdict. So there are no overall reasons’ (see Jonathan Dancy, Ethics Without Principles, Oxford: Oxford University Press, 2004, p. 16). On the other hand the buck-passing controversy about thin value is heated enough to justify a preliminary exclusion of facts embedding thin evaluations about what is good or bad in some way. That being said, nothing about the way normative depiction is supposed to work turns on whether thin evaluative truths are themselves reason-giving or just report the instantiation of a higher-order property of goodness by a reasons-relation holding between other descriptive or thick evaluative properties and actions or attitudes. 530 counterfactual rather than our actual agential profiles. Whereas in the first case treating a fact as reason-giving serves to measure the actual degree of our responsiveness to reasons, in the second case it is not our actual responsiveness to reason-giving facts that matters for our appraisal but the counterfactual fact that our actual behavior that falls within the extension of the description associated by a given practice with an evaluation of some sort could be informed by a recognition of the reason-giving force of a thick evaluative fact. The contrast between the depiction of our actual selves in our actions and the constitution of an ideal self by our actions is not meant to serve as a figurative device. It rather purports to motivate an explanatory shift in our understanding of thick evaluation. To see how this shift can be achieved it is worth giving a general picture of what is at stake in debates about the notion of evaluative thickness. Standard defenses424 of thick evaluative concepts point in one way or another to the fact that the descriptive and the evaluative components of these concepts are so intricately entangled that 424 The force of arguments proffered in support of the irreducibility of thick concepts varies from focused appeals to ideas about the uncodifiability and inseparability of thick evaluation to a more global defense of the metaphysical primacy of thick evaluative properties vis-à-vis their thin cognates. For the former view, cf. John McDowell, ‘Virtue and Reason’ in The Monist (1979) 62: 331-50, Bernard Williams, Ethics and the Limits of Philosophy, Cambridge, MA: Harvard University Press, 1985, at 130-42 and Jonathan Dancy, ‘In Defense of Thick Concepts,’ in Peter A. French, Theodore E. Uehling, Jr., and Howard K. Wettstein (eds.), Midwest Studies in Philosophy XX: Moral Concepts, Notre Dame: University of Notre Dame Press, 1996, pp. 263-79. For the latter approach cf. Christine Tappolet, ‘Through Thick and Thin: Good and its Determinates’ in Dialectica 2004 58 (2): 207-21. 531 the former do not suffice to determine their extension without the input of some evaluative judgment that applies to the whole concept. On the other hand there is a forceful objection advanced by proponents of reductivism who are willing to grant that evaluation is an indispensable determinant of the extension of thick concepts but also argue that this premise can be easily accommodated by reductive analysis.425 The upshot of this controversy is that the thickness of evaluation is measured by reference to whether it necessitates only one type of evaluation that applies to a concept as a whole (thick global evaluation). If one can successfully demonstrate that the latter type of evaluation can be broken down into a pair of thin global evaluation (‘x is good’) and thin embedded evaluation (‘for the sake of good goals’), the guise of thickness disappears. 425 This strategy proceeds by way of analyzing thick concepts in terms of not just one but two thin evaluative components one that applies to the object of evaluation globally (‘x is good’) and one that is embedded in the descriptive part of the concept. On this picture a thick attribution of the form ‘x is C’ is analyzable into something like ‘(i) x is good, (ii) there is a set of determinable properties X,Y,Z it is good to have in some determinate respect such that if x exemplifies those properties, x is good. Goodness figures in this analysis in two different roles, first as an attribute of ‘x’ and, secondly, as an attribute of the determinable properties X,Y,Z. To illustrate this analysis we may replace C with the property being courageous. By the lights of this reductive method ‘x is courageous’ in analyzed into ‘x is good and x involves accepting certain risks of harm for the sake of good goals’. The crucial step in this analysis is that the embedded evaluation (the goodness of certain goals) holds independently of whether accepting harm or the risk of harm for the sake of good goals is good in a certain way. The latter global type of evaluation is the only one recognized by non-reductivists. For a detailed illustration of this view cf. Daniel Elstein and Thomas Hurka, ‘From Thick to Thin: Two Moral Reduction Plans’ in Canadian Journal of Philosophy (2009) 39 (4): 515-36. 532 An unexplored way of bypassing this controversy is indicated by the previous brief exposition of constitutive impact. The beginning of wisdom is to consider whether this controversy has been taking place in the wrong dimension. A possible explanation of the persistence of this dispute is that both parties converge in their assumption that what is at stake with the (ir)reducibility of thick evaluation is its capacity to operate as an independent source of normative guidance. In other words, friends of thick evaluation want to insist, whereas reductivists want to deny, that facts about the possession of thick value are genuinely reason-giving in the sense that they can provide reasons for action (or attitudes) rather than be reductively explained in terms of the latter.426 Reductivists want to deny this possibility for a host of reasons one of which is that many of these thick evaluative concepts can be morally objectionable.427 On the other hand, defenders of thick evaluation aspire to preserve the irreducibility of a 426 I leave aside buck-passers about thin value as their participation in this debate is only epiphenomenal in the sense that the whole controversy about whether thick evaluation is reducible to thin evaluation is a non-starter for the globally reductivist project of buck- passing. See also infra notes 16 and 17. 427 For instance, thick attributes like chaste or lewd, or slur words like faggot or Kraut embody values that really ought not to be endorsed thus rendering the very truth-aptness of sentences embedding them problematic. A non-cognitivist use of this line of reasoning has been forcefully advanced by Simon Blackburn (see his (‘Through Thick and Thin,’ Proceedings of the Aristotelian Society, Supplementary Volume (1992) 66: 285-99). For a comprehensive review of the relevant literature see Pekka Väyrynen, ‘Thick Concepts: Where’s Evaluation?’ In R. Shafer-Landau (ed.), Oxford Studies in Metaethics, Volume 7 (Oxford: Oxford University Press, 2012), 235-70. 533 cluster of thick evaluative properties in the hope that this can be used as valid evidence against a sweeping reduction of value into reasons.428 For instance, if it turns out that the fact that Φ-ing is courageous cannot be reduced to the fact that Φ-ing involves accepting harm or the risk of harm for a superior goal and Φ-ing is good in this way, thick evaluative facts can escape the buck-passing fate of their thin cognates.429 In that way they can operate as sources of reasons without also being themselves explainable in terms of reasons. Introducing a second dimension of normative relevance (impact) invites us to consider the possibility that the crux of controversy about thick evaluative facts lies not—primarily, at least—in their capacity to be action- guiding (dimension of salience) but in their capacity to affect our evaluation qua agents independently of whether we actually treat them as reasons for action and, consequently, of whether they explain our actual conduct (depictive vs. constitutive impact). In the latter sense it is misguiding to try to locate the thickness of evaluation in the inseparability of description from the evaluation of action. Rather our quest for the essence of evaluative thickness should find its destination in the inseparability of description from the evaluation of agents. That is to say that defenders of thick evaluation should consider downplaying their worry about the possibility of analyzing 428 Ulrike Heuer has consistently pursued this line of argument; see her ‘Explaining Reasons: Where Does the Buck Stop?’ in Journal of Ethics & Social Philosophy, (2006) 1(3): 1-25. 429 Ibid, p. 235. 534 thick evaluative properties in terms of (a cluster of) thin evaluative ones or, even more, in terms of normative reasons and redirect the force of their objection towards the possibility of conditioning the possession of thick evaluative traits by agents not just on how their actions fit a certain description however this is ultimately determined but also on whether they actually treat the fact that acting in a thus and so determined way is courageous or generous430 as a reason to perform their action. This reconfiguration of the site of our metanormative disagreement about the indispensability of thick evaluation associates the latter with the possibility of the counterfactual or constitutive (as opposed to actual or depictive) evaluation of agents rather than of their actions. This claim calls for some further unpacking. The general idea is that, as we navigate on the thin-thick spectrum moving from its thin end towards its thick territories, the role of practices and more specifically the role of the practice of attributing thick evaluative traits to persons by partial reference to some 430 If we take the path of reduction the same objection would be directed either to a conjunction of thin evaluative facts or, if we also decide to pass the buck, to a fact about the reasons provided by a cluster of descriptive facts. To dispel some of the complexity of this long road to ultimate reduction, take the fact that Φ-ing is courageous. A non-buck- passer reductivist will take on board a composite fact of the form ‘the fact that one accepts harm or the risk of harm for the sake of a superiorly good goal and the fact that this acceptance is good’. Furthermore, a buck-passer reductivist will argue in favour of a fact like ‘the fact that a goal’s instantiating a set of descriptive properties X,Y, Z is a reason to pursue it and the fact that accepting harm or the risk of harm for the sake of this reason- giving goal is a way of achieving it’. In the former case it is the conjunction of thin evaluative facts that provides a reason to act accordingly, whereas in the latter case it is the conjunction of a fact about reasons and a descriptive fact that provides a reason to act accordingly. 535 descriptive standards acquires a distinct moral importance that cannot be captured in terms of thin value. That being said I should caution that that this shift in normative relevance does not mark a difference in kind between, say, ordinary reason-giving facts and thick evaluative facts but a difference in degree. As I said, the idea is that if there is a sense of inseparability that the defender of thick evaluation should take on board it is the inseparability of descriptive content from our actual practice of valuing that content in distinct ways. To see how this argumentative shift might work, recall what the most pressing version of the reductivist argument claims. The objection is that we can perfectly well make sense of thick evaluation by reducing it into a pair of thinly evaluative components one of which—the descriptive component—embeds a thin evaluative judgment whereas the other one is a pure thin evaluation of the form ‘x is good’. As Elstein and Hurka remark, this embedded thin evaluation introduces a standard that holds independently of the practice of attributing thick traits to agents. In their own words, ‘many and even all virtues and vices involve a relation to some independently given [emphasis added] moral consideration, often (though not always) an independent good or evil’. For them, it is precisely this practice-independent standard that dissolves the ‘argument from 536 disentanglement’431 as it allows evaluation to drive the extension of the concept thinly construed. The introduction of the dimension of normative impact and more specifically its negative half (constitutive impact) serves to highlight why this reductive account fails by its own lights. Shifting our talk from actions to agents we may focus on a reductive analysis of the concept of being courageous. On the reductivists’ view to say that A is courageous is to roughly say that A accepts harm or the risk of harm for the sake of a superior good goal and that A is good in this respect.432 By the argument’s own lights we get that A’s goodness of character is settled as soon as we settle the independent evaluative question of what makes a goal good and how the goodness of this goal contributes to the goodness of accepting harm or the risk of harm for its sake. But this gets the evaluative point of the practice of attributing courageousness totally wrong. The reason is that it fails to see the distinct moral value in regimenting the scope of thick evaluation by reference to our actual practice of attributing courageousness to the same agent or different agents across different times and contexts. If we focus our disagreement on what it means to subject actions to thick evaluation all things considered—or in more archaic prose, sub specie 431 See John McDowell, ‘Non-Cognitivism and Rule-Following’ in S.H. Holtzman and C.M. Leich (eds.), Wittgenstein: To Follow a Rule, London: Routledge & Kegan Paul, 1981, pp. 141-62, at 144. 432 You may wish to replace ‘good in this respect’ with fitting-attitude predicates like ‘admirable’, ‘laudable’ etc. 537 aeternitatis—we miss the chance to acquaint ourselves with the unique moral intricacies of consistently treating agents as the subjects of positive or negative thick evaluation. The latter aspect can only become visible provided that we are willing to provisionally abandon our preoccupation with valuable actions and put ourselves qua agents in the center of this controversy. The moment we decide to shift our perspective in the way suggested we will see that substituting a practice of thick evaluation for a practice of thin evaluation all things considered would instantly deprive us of our ability to distinguish between various instances of evaluation. To give just one example, take the case of the values of beneficence and friendship. As Pekka Väyrynen remarks, ‘the pre-theoretical data about welfare and friendship are consistent with the idea that we should respond to welfare subjects as if they were friends. Pre-theoretically, however, the properties that provide reasons of welfare and reasons of friendship do seem similar enough not to distinguish the two properties’.433 Pre-theoretically, that is, prior to the identification of a particular practice of attributing thick evaluative traits, the descriptive properties that would figure in a reductive analysis of both concepts would seem to overlap to a degree nearing total coincidence. Roughly, both concepts would involve a disposition to benefit others out of sympathy for their ends or person. Embedding a thin 433 See P. Väyrynen, ‘Resisting the Buck-Passing Account of Value’, in R. Shafer-Landau (ed.), Oxford Studies in Metaethics, Volume 1, Oxford: Oxford University Press, 2006, pp. 295-324, at 319. 538 evaluative judgment in the latter description like ‘out of sympathy for the goodness of their ends or person’ would add nothing in the service of affording a more fine-grained explanation of why beneficence and friendship evoke distinct evaluative responses. The farthest point such an analysis would take us is to qualify someone’s overall goodness in terms of a practice-independent conception of what makes others’ ends or character merit our responsiveness. Advocating for the inseparability of some privileged description of virtuous activity from the way it should be evaluated acquires significant force the moment we allow ourselves to consider the distinct moral importance of our practices of thick evaluation. On this alternative view to which, as I am about to show, the notion of constitutive impact adds significant explanatory depth, these practices are morally important not for how closely they emulate the moral truth all things considered—as thin evaluation suggests—but because they make morally intelligible the way we have been treating past instances of courageous, generous, cruel or polite behavior as well as the way we proceed to treat current or future instances of such behavior.434 Under this scheme, the question we should be asking is not how to fit available descriptions into an all-things-considered conception of the good simpliciter but how to define the conditions under which the 434 I owe the general layout of this argument to Ronald Dworkin’s broader understanding of the value of integrity. See his Law’s Empire, Cambridge, MA: Belknap Press, 1986, especially at 176-224. His idea is not strictly confined to the case of law as he explicitly remarks that integrity can serve as a template-value for different kinds of regulative or constitutive practices. 539 actual instances of attributing thick evaluative traits to agents can be justified. This is precisely the moment that the relevance of normative impact qua ideal constitution becomes visible. As I previously noted, the difference between our actual selves being evaluatively depicted in our actions and our ideal selves being constituted by our actions lies in the fact that in the latter but not the former case our actual actions enable our evaluation irrespective of how ideally sensitive we are to the evaluative point of the practice, that is to say, irrespective of whether we actually treat facts about thick value as reasons for action.435 The idea roughly is that practices of thick evaluation take place within the context of our imperfect lives and less than ideal institutional or collective arrangements. If we practiced perfect virtue it would make no sense to try to distinguish between instances of the value of beneficence from instances of the value of friendship as every possible action or behavior would immediately fall under a concept of absolute, unqualified goodness. In our imperfect world however, there are reasons to want to supplement what we ought to do with privileged descriptions of how things are in a certain respect. This is the need that thick evaluation purports to serve in a way that thin evaluation cannot accommodate. Privileged descriptions in the relevant sense will be 435 The reason is that, as I will explain further below in the main text, thick evaluative facts are not facts about evaluative truth simpliciter but their obtaining is sensitive to the point of the practice of employing these facts as standards for evaluating agents, and concomitantly, their actions. 540 descriptions that the principles that inform a given practice can sufficiently justify. In this non-ideal setting we want to ask who counts as436 courageous, cruel or polite. The answer that the theoretical viewpoint of constitutive impact offers is that a courageous person is one whose actual behavior would satisfy a certain description if by the lights of a given practice of attributing courageousness he could treat the fact that this type of behavior is courageous as a reason for action. This definition can help explain why being courageous is not a matter of acting for the right kind of reasons437 whose rightness is determined independently of how courage is actually being predicated of people here or there. As long as a morally fallible person acts in compliance with the descriptive standards that a given practice showcases as evaluatively relevant, it does not matter whether she actually treats this evaluation as a reason for action. The reason is that this evaluation is not presented as an evaluative fact that has an independent normative appeal that everyone should be able to recognize irrespective of the existence of a practice—that is, to act in recognition of 436 I deliberately use the expression ‘counts as’ as syntactic evidence for the relevance of the notion of constitution in the case of practice-instantiating actions. 437 In the contemporary literature the term ‘wrong kind of reason(s)’ has also acquired a technical sense. In the latter sense, it purports to describe cases where the desirability of something seems to provide the wrong kind of reason to determine whether that thing is good or not. The latter problem is closely associated with a set of account aspiring to explain value in terms of fitting (“reasons-induced”) attitudes. For an approach that makes the normative–relevance of the right kind of reasons practice-dependent, see Mark Schroeder, ‘Value and The Right Kind of Reason’ in R. Shafer-Landau (ed.), Oxford Studies in Metaethics, Volume 5, Oxford: Oxford University Press, 2010, pp. 25-55. 541 its all-things-considered importance. It matters only to the extent that it makes the practice of thick evaluation morally intelligible as such. The latter point with which I intend to conclude this digression serves to safeguard practices of thick evaluation from the charge of sweeping moral relativism. There is no denial that it would be a great loss of explanatory force if we allowed just any kind of practice of thick evaluation to count as being able to constitute our ideal selves by our actions. A limiting principle or set of principles must be available that makes the moral intelligibility of these practices attainable for both their members and non-members in a unified way. This would be the only way to make our normative judgments sensitive to the difference between a practice that declines to attribute cruelty to female mutilation and a practice situated in the 19th century when no general anaesthesia was medically available that declined to characterize surgeons of that time as cruel. An idea that has been lurking in the neighborhood for quite a long time is that any practice involving the attribution of thick evaluative traits to people should be informed by a principle of egalitarian distribution, the latter being about the ‘distribution’ or allocation of virtues and vices within a given community. As such this suggested principle cannot be purely formal in the sense that it ought to be capable of making distributions of evaluative traits themselves morally intelligible. This could be attained if we decided to qualify this principle by hedging its content with a clause to the effect that any egalitarian distribution of evaluative traits across different times and contexts must 542 reflect equal respect and concern for all its addressees irrespective of their congenital or situational advantages or strengths. In the latter case our evaluative task is driven by a thickly egalitarian principle rather than a principle of personal desert. Our public practices seem to direct us to evaluate personal conduct in the same way we would evaluate the same actual conduct had it taken place under ideal conditions which in the relevant case are partly determined by reference to the practice’s own past. CHAPTER III The Metric Approach to Legal Normativity Following this lengthy digression I will resume the progress of my argument and focus on the way in which contemporary accounts of legal normativity— both anti-positivist and positivist—tend to measure their robustness by reference to how closely they can afford to associate their metaphysical account of legal facts with what could qualify as a proper Nexus-type reason for action. More precisely, I shall argue that those who favour the existence of legal facts atop a stratified ontology featuring moral and/or social facts in 543 its lower strata are subject to the constant ‘gravitational pull’ of the Nexus quadrant. To codify my argument I will be referring to this tendency as the metric approach precisely with a view to accentuating the role of the Nexus as a comparative standard of normative robustness. It should be noted from the beginning that the attractive force of the Nexus does not necessarily lead to the espousal of an account of legal facts as Nexus reasons. What I intend to argue instead is that legal philosophers who choose to resist the idea that law provides reasons in the same way that interpersonal morality or prudence does tend to present their decision as a partial departure from what would count as an instance of robust practical normativity. As explained earlier, the Nexus purports to be a theory about what makes something robustly normative; it does so by serving as a plausible case about the combined possibility of an agent’s being guided by reasons and being evaluatively depicted in her action by virtue of her actually treating those same reasons as favouring her action. In response to the worry that legal normativity can retain its status as a worthwhile topic only by appeal to its proximity to normative reasons there has been an incremental recognition of the relevance of metaethical inquiry in addressing this problem. Fortunately, there is not just one way of rescuing legal normativity from the jaws of eliminative reduction. A variety of strategies has been offered to combat the spectrum of deflationist or quietist approaches to the question of whether law is normative. What is most important is the fact that the most robust defenses of legal normativity 544 draw upon the insights of metaethical theories of practical normativity marshalling arguments from classical teleology and philosophy of action,438 constitutivism about agency439 or a combination of the insights from theories of moral constructivism and discourse ethics.440 Whereas there is little room for doubt that the prospect of marginalizing normative nihilism 438 Veronica Rodriguez-Blanco develops her own teleological account of legal normativity by investigating what she describes as a paradox, namely, how autonomous persons can allow the guidance of their actions by legal rules without compromising their autonomy. Her way of solving this puzzle is to model action governed by legal rules in the likeness of a particular conception of intentional actions as taken in, and because of, a belief that there is some good in them. The extension of the ‘guise of the good’ argument to law proceeds in two steps: first, she defends the broadly Aristotelian premise that reasons for action, in general, can be viewed as good-making characteristics of intentional actions and, consequently, she ventures to apply this idea to the case of following a legal rule. On this approach acting on a legal rule is an action explainable in terms of the good-making characteristics (reasons) of more basic actions that serve as core instantiations of what it is to follow a legal rule. For a more detailed description of this view cf. Veronica Rodriguez- Blanco, ‘Social and Justified Legal Normativity: Unlocking the Mystery of the Relationship’ in Ratio Juris (2012) 25 (3): 409-33 as well as her recently published monograph entitled Law and Authority under the Guise of the Good, Oxford: Hart Publishing, 2014. 439 Cf. Stefano Bertea, The Normative Claim of Law, Oxford: Hart Publishing, 2009. Bertea aspires to draw a continuous line from the nature of human agency, through the domain of practical reason, to legal normativity. In his own words, ‘the essential features of the normativity of law, as well as of its obligatory force, can be arrived at by considering the normativity of the activity of which law is a special case, namely, practical reason. This is to say that, just as the normativity of practical reason is grounded in human agency, so is the normativity of law, and hence its obligatory force’ (see his ‘Law and Obligation: Outlines of a Kantian Argument’ in S. Bertea and G. Pavlakos (eds.), New Essays on the Normativity of Law, Oxford: Hart Publishing, 2011, pp. 199-218, at 218). A non-Kantian version of the same constitutivist strategy is developed by Corrado Roversi (see his ‘On Constitutive Normativity’, ibid, pp. 283-309). 440 Sylvie Delacroix is a major representative of this approach. She labels her account as ‘genealogical’ in the sense that it purports to explore the socio-culturally embedded 545 about law is much safer now thanks to these contributions, there is a parallel concern I would like to raise with regard to the metanormative focus of these defenses on the relation between law and action-guidance. What I intend to argue is that the platform of discussion about the normative import of law remains unwarrantedly narrow mainly because most parties to this debate tend to measure the robustness of accounts of legal normativity by assessing their proximity to an ideal relation between normative reasons and the explanation of intentional action. Even for legal philosophers who favor a very thin account of legal normativity the grounds for their deflationary approach are a function of proximity to this region of perfect synergy between justification and explanation. For the purpose of my exposition, I will single out Joseph Raz’s account of authoritative reasons and Mark Greenberg’s account of binding legal obligations as informative examples of how the Nexus model can be applied to a pair of radically opposed jurisprudential theories. At the same time it would be totally misleading to suppose that all legal philosophers who pledge ontological commitment to legal facts are willing to make all the conditions of its possibility. On this understanding, law’s normativity gains in being understood ‘dynamically’. In Delacroix’s own words, ‘ the normative dimension of law cannot ever be taken as a "given" established once and for all, provided the officials' minimal commitment condition is verified. Understood dynamically, law's normativity may be said to be brought about everyday. Each time an individual is led to assess law's normative claims in the light of morality's demands, each time a judge is led to re-articulate what we want law for: these cases contribute to shaping the "fabric" enabling law's normativity’ (see her ‘You'd Better Be Committed: Legal Norms and Normativity’ in American Journal of Jurisprudence (2009) 54 (1):117-132, at 130). 546 necessary concessions in order to model the normative force of legal facts in the likeness of ordinary reason-giving facts. To validate this point I plan to defend the claim that, for an array of diverse reasons, Dworkin’s principle-based account of legal obligation and Shapiro’s argument about the inner rationality of law are not fitting instances of the Nexus model. More precisely, the idea I aim to put forward is that the “natural habitat” for Dworkin’s conception of legal obligations as instantiations of principles of political morality is the quadrant featuring thick evaluation as its main occupant, whereas Shapiro’s argument about the rationality of legal planning is unambiguously eligible for membership of the quadrant that also features wide-scope requirements of rationality. Part of what I aim to achieve by means of this alternative taxonomy is to provide a better template for varieties of theoretical disagreement about the normativity of law. In the first of this thesis I offered a different taxonomy with a view to making more intelligible the way in which theoretical disagreement about the grounds of law can be manifested both as an instance of first-order metaphysical dispute about the constituents of law and the descriptive or normative grounds of legal facts and as an instance of second-order metaphysical dispute about the possibility of legal constitution and the nature of legal grounding. In a similar vein I plan to argue that theoretical disagreement about legal normativity can be carried out at two levels of abstraction. By analogy with the argument I developed 547 in the first part about the possibility of metajurisprudential disagreement441 I also intend to defend a similar idea about the possibility of metajurisprudential disagreement between theories of legal normativity whose metanormative commitments are so radically different that they justify objections to the effect that some instances of first-order disputes about the grounds of “legal reasons” are merely verbal. If my intuition that the current debate on legal normativity is a local version of the standard treatment of the Nexus as a measure of normative success proves correct, I will be in a position to invoke this claim in the service of advancing my argument that legal philosophers who more or less explicitly subscribe to the metric approach are driven by the concern that any divergence in identity or modal profile between the facts that require, evaluate and explain legal conduct commits them to a thinner or more modest account of legal normativity. The ascription of this concern is not 441 In the first part I presented two main cases of phenomenally incommensurable metaphysical views about legal content and its determination respectively. The first one featured, one the one hand, friends of legal constitution (Raz, Greenberg) and, on the other hand, reductivists (Shapiro’s defense of the constitution of plans, instead of legal norms) and error theorists (Dworkin’s rejection of the very possibility of constitution) about the possibility of legal constitution. The second case featured defenders of the possibility of descriptive theoretical disagreement about the grounds of law (Raz, Shapiro) and defenders of the possibility of normative theoretical disagreement about the grounds of law (Greenberg, Dworkin). In both cases, I argued that whereas there are plausible objections to trying to bring these theories in direct opposition to each other, it is perfectly possible to showcase their opposition as an instance of metajurisprudential disagreement. In the former case the relevant disagreement is about the possibility of legal constitution, whereas in the second case the relevant disagreement is about the nature and scope of legal grounding. 548 meant as an attempt at exegesis. For reasons that are structurally similar to those that have favoured the ascription of the metaontological view of legal propositionalism I will also try to present this hypothesis as an attempt to charitably reconstruct the metanormative commitments of these theories. The purpose of this reconstruction is not to display any fatal inconsistencies in their reasoning about the normativity of law but to alert the parties to this debate that its thorough adjudication requires full engagement in metanormative inquiry. Consequently, the caution I wish to convey upon this subject can only be appealing to those who are willing to consider the possibility that the robustness of the normativity of law is not a function of whether it can guide our conduct without supplementation by other sources of normativity. The latter claim is metanormative by nature and as such it cannot be settled by recourse to our familiar conceptual tools. My contention will be that despite their radically opposed premises my exemplary theories of law converge in their espousal of the metric approach described above. That is to say, they converge in their treatment of the Nexus as the ideal standard for measuring the robustness of legal normativity. As already noted, the Nexus serves as a standard of the robustness of the normative force of law rather than as a criterion of its existence. Consequently, it is not necessarily the case that if someone treats the Nexus as a standard of normative robustness she is ipso facto committed to adjusting or moulding her account of legal normativity in the likeness of the occupants of the Nexus quadrant. In fairness the only 549 accounts I intend to position within the theoretical boundaries of the Nexus is, as one may expect, Joseph Raz’s account of authoritative legal reasons and, perhaps less expectedly, Mark Greenberg’s account of legal obligation. In virtue of their common metanormative background, I shall argue that Raz’s Normal Justification Thesis and Greenberg’s Bindingness Hypothesis can be meaningfully juxtaposed as competing first-order accounts about the determinants of the reasons for action provided by the law.442 In the light of these qualifications the convergence I have attributed to my exemplary cases should not be considered as a sign of doubt about the extent to which legal positivism actually departs from the basic tenets that define antipositivist theories like interpretivism, moral impact theories or different versions of natural law theory. This is a platitude I have no intention to refute precisely because I take it to be fairly uncontroversial that a legal positivist and a legal antipositivist do engage in a substantive and deep disagreement about the nature of law. The only erroneous premise I intend to treat as being in common possession by both camps is metanormative, not substantive. As we move to theories of legal normativity that cannot be modelled as more or less direct applications of the Nexus, it will be more fruitful to frame their opposition to the Nexus theories as originating from a different 442 It is not coincidental that the same pair of jurisprudential theories also figured in a first- order metaphysical dispute about the constituents of law. In the first part of the thesis, I argued at length that both Raz and Greenberg converge in their general acceptance of the possibility of legal constitution, yet they differ with respect to its “materials”. Their metatheoretical affinity is, as I tend to believe, a feature that is manifest across the board. 550 metanormative conception of the force of legal facts. To illustrate my point, I will argue that Dworkin’s interpretivist understanding of the force of law and Shapiro’s institutional account of the inner rationality of law constitute distinct metanormative variants of the metric approach. This is not to say that their first-order commitments cannot become visible in their adversarial engagement with supporters of the Nexus; the point rather is that their first-order views about, say, the justification of official coercion (Dworkin) or the effective management of the circumstances of legality (Shapiro) should be addressed through the lens of their metanormative dissent. III.1. Variants of the Metric Approach As it turns out my reconstruction cannot proceed on the mere assumption that my case theories are implicitly committed to the Nexus as a standard of normative robustness. The reason is that any putative appeal to this standard is evaluative, not constitutive in the sense that it serves to measure the explanatory ambition of a theory of legal normativity rather than to dictate or preempt its metanormative commitments. The latter would be the case only if a given theory did not refer to the Nexus only as a standard of robustness but also as a standard of correctness. On this hypothesis legal facts would be normative if and only if they could emulate 551 the normative function of ordinary reason-giving facts, that is to say, only if they could simultaneously require, evaluate and explain conformity with law. Since I am not willing to shoulder this much stronger presupposition, I am compelled to venture this reconstruction by introducing an internal division. The explanatory role I have chosen to reserve for the metric approach is analogous to the role I assigned to legal propositionalism as a general thesis about how the truthmakers of legal propositions are thought to be derived from the truth conditions of legal statements. In the first part legal propositionalism was presented as a metaontological thesis about the determinants of a theory’s ontological commitments. In this part the metric approach will be presented as a metanormative thesis about the determinants of a theory’s normative robustness. Much in the same way that non-reductivist, reductivist and error-theoretical approaches to the possibility of legal constitution were presented as different ways of implementing the basic rationale of legal propositionalism, I will also venture to offer three variants of the metric approach. As one may easily guess, the defining feature of each variant will be a function of its proximity to the Nexus quadrant. As a result, the first variant of the metric approach will be a direct application of the Nexus model to the legal case. Locating legal normativity in the Nexus quadrant presupposes that legal facts are such that they can operate as decisive or pro tanto considerations, they can be actually treated as such by agents and, finally, they can serve as 552 normative explanations of instances of law-conforming behaviour. In what follows I will present Joseph Raz’s account of authoritative legal directives and Mark Greenberg’s account of binding legal obligations as two exemplary cases (one positivist and one antipositivist) of the Nexus conception of legal normativity. By definition the other two variants of the metric approach will be less than full-fledged applications of the Nexus model. To see how these two remaining variants can be modelled as thinner versions of the Nexus model we should bear in mind that the two prominent features of Nexus-consistent facts are their capacity to serve as reasons for action and their capacity to serve as a standard for evaluating agents as they are actually reflected in their actions. Consequently, attempts to mitigate the robustness or aspirational force of law as a source of Nexus-reasons will feature legal facts either as lacking the capacity to serve as a standard for actual evaluation or as lacking the capacity to provide reasons for action. In this regard there emerge two routes of (partial) departure from the Nexus quadrant. On the first route legal facts turn out to be modestly normative443 in the sense that they preserve their reason-giving character but lack depictive impact. To recall a previous point about the distinction between depictive and constitutive impact, the idea is that whereas a Nexus-type fact is such that its “possession”—in the sense of being had or treated as a 443 My use of the term ‘modestly normative’ is strictly associated with the fact that by the lights of the metric approach anything that falls short of emulating the model of Nexus- reasons also falls short of operating as a robust normative standard. 553 reason—must be actual in order to serve as a standard of appraising an agent as being responsive to reasons, constitutively impactful facts are such that, even though they may fail to explain one’s actual conduct, their counterfactual possession—that is, the fact that they could be treated as reasons for action in the context of a given institutional or social practice— suffices to serve as a standard of appraisal of an agent’s actual behavior . On the second route legal facts are modestly normative in the sense that they preserve their depictive impact but lack the capacity to provide reasons for action. On this alternative picture, legal facts will operate in the likeness of attitudinal facts that give rise to wide-scope requirements. The first modest variant seeks to downsize the scope of distinctly legal reasons to institutional reasons on the broadly Kantian basis that, as Arthur Ripstein articulates the point, law does not purport to answer ‘the moral philosopher’s familiar question of how people ought to treat each other, but the distinctively political question of how they may legitimately be forced to treat each other’.444 On this view legal facts are also normative reasons but their institutional character is such that it renders their evaluative impact constitutive rather than depictive. In what follows I will specifically associate this position with Ronald Dworkin’s account of the “force of law” by suggesting that on his theory of law as integrity legal facts literally provide reasons for enforcement on demand, rather than direct reasons for 444 A. Ripstein, ‘Authority and Coercion’ in Philosophy & Public Affairs (2004) 30 (1): 2-35, at 6. 554 action. Despite appearances reasons of integrity, as I would prefer to call them, are not exclusively addressable to legal officials but, as Dworkin explicitly says, apply to all members of a community or forum of principle (legislatures, executives, judges, citizens as well as external observers of a legal practice). Each and every member of such a community is invited to take a pervasively reflective or “protestant”, in Dworkin’s words, attitude towards the responsibilities of government vis-à-vis its citizens. The latter attitude is taken to be essential to a people ‘united in community but divided in project, interest, and conviction’.445 On this approach, to assume an interpretive stance towards the content of the law is to make a plausible case about the obtaining legal facts that justify the enforcement of rights and duties on demand. In this regard reasons of integrity are less robust in the sense that despite their being full-fledged normative reasons their possession need not be reducible to a psychological fact about an agent’s actual attitudes. An agent can act on reasons of integrity and thus be evaluated as showing equal concern and respect for all members of the community on a counterfactual basis. As Dworkin remarks, the evaluative property of displaying equal concern and respect towards our fellow- citizens ‘is an interpretive property of the group’s practices of asserting and 445 R. Dworkin, Law’s Empire, Cambridge, MA: Belknap Press, 1986, p. 413. Gerald Postema believes that Dworkin’s Protestantism goes far beyond this reflective viewpoint that every citizen should be urged to take in interpreting what the content of the law requires in particular circumstances. For a critical account of Dworkin’s interpretive ‘protestantism’ see Gerald Postema, ‘“Protestant” Interpretation and Social Practices’ in Law and Philosophy (1987) 6 (3): 283-319. 555 acknowledging responsibilities…not a psychological property of some fixed number of the actual members’.446 The second approach seeks to reverse the priority of action-guidance over consistency in action by denying that legal facts or whatever these facts are reducible to provide reasons for action while retaining the component of depictive impact as what marks the model’s proximity to the Nexus quadrant. As I plan to argue, Shapiro’s argument about the inner rationality of law is a typical instance of this mitigating approach. On this alternative view legal facts impose rational constraints on the combination of attitudes legal officials are allowed to adopt towards future legal planning. In that sense their normative salience is not manifested as a compass for choosing the morally or rationally or prudentially best master plan but as a constraint on what those who accept a legal system’s master plan can further intend with regard to its implementation or preservation. Inevitably, the scope of planning normativity is more limited than the normative scope of the two previous variants of the metric approach as it is mainly addressed to legal officials or more generally to those who are institutionally involved in the production, implementation and preservations of legal plans. The way in which this second thinner variant retains its affinity with the Nexus paradigm is not by providing reasons of a limited sort but by evaluating legal officials as they are actually (instead of counterfactually) depicted in their plan-following activities. In this regard it remains crucial that on this 446 Ronald Dworkin, Law’s Empire, supra note 8, p. 201. 556 approach legal officials remain rationally criticizable for failing to obey legal authorities.447 III.2. Measuring Up Against the Nexus: Legal Facts as Nexus Reasons Perhaps the most common platitude is that if law is robustly normative, the relevant reason-giving facts are legal facts or whatever these facts are reducible to. Of course, no legal positivist will endorse the further premise that legal facts are themselves normative facts. This is not a problem for friends of the metric approach as it is perfectly possible for ordinary descriptive facts to figure in relations of “being a reason for” precisely because what is normative is the relation itself and not (necessarily) its relata. Differently put, unless one wishes to subscribe to an idiosyncratic version of the metric approach that treats certain classes of fact as intrinsically reason-giving, there is no theoretical pressure to explain how a legal positivist can even think of treating legal facts as eligible reason- giving facts. By contrast, I hazard to guess that most antipositivist theorists would be willing to accept that legal facts are at least capable of qualifying 447 As Shapiro remarks, ‘[t]he inner rationality of law, of course, is a limited set of constraints because the rational norms of planning only apply to those who accept plans. The bad man, therefore, cannot be rationally criticizable for failing to obey legal authorities insofar as he does not accept the law. On the other hand, since most officials do accept the master legal plan, they are criticizable for disobeying the law absent a compelling reason to do so’ (in S. Shapiro, Legality, Cambridge MA: Harvard University Press, 2011, p. 183). 557 as normative facts given some further premises. It is a further question whether on an antipositivist picture a legal fact is extrinsically normative (in virtue of more basic moral facts) or generically normative qua instance of a generic or universal fact (a fact about the essential properties of legal norms or a principle). For example, an antipositivist could argue that a fact cannot qualify as a legal fact unless it is capable of providing rational guidance according to a set of moral criteria, or, alternatively she could argue that there can be instances of defective legal facts, that is to say, legal facts that fail to provide rational guidance precisely because they fail to instantiate felicitously the criteria that establish their reason-giving capacity. In what follows I will employ the tripartite distinction between the metaphysical, the evaluative and the explanatory role of normatively relevant facts in order to give a general description of how, by the lights of the metric approach, legal facts would manage to function in the likeness of ordinary Nexus-type reasons for action. To repeat a previously made point, Nexus-reasons are marked by their capacity to perform all three roles without supplementation by other reasons and without recourse to counterfactual idealizations of agents. To give a handy example that I have been tediously employing from the beginning of this part, the fact that John’s friend is sick at the hospital—let’s call it F—is eligible for operating as a Nexus-reason in context C iff (a) F favors John’s visiting his friend, (b) John is evaluable as being responsive to reasons insofar as he actually 558 treats F as a reason to visit his friend and (c) the actual event of John’s visiting his friend at the hospital is normatively explained by F. On this picture one and the same fact F serves as a standard of conduct (metaphysical role), a standard of appraisal (evaluative role) and an explanatory standard (explanatory role). By the same token, legal facts could operate as Nexus-reasons iff their obtaining favors or requires particular types of action, their actual treatment as reason-giving bestows a positive evaluative trait on agents and their general nature can help explain individual instances of law-conforming behavior. Keeping the formal similarities of positivist and natural law theories aside, the most attractive part of the story consists in their nuanced divergence with respect to how legal facts can be simultaneously operative on all three dimensions of normative relevance. The contrast I would like to showcase is more illustrative than exegetical in the sense that one can plausibly encounter interesting variations even within each jurisprudential camp. Moreover, it goes without saying that my target theories do not offer any explicit remarks that verify their espousal of the two-dimensional model I am trying to defend. As a result, my intention of suggesting an informative map of available accounts of legal normativity is modest enough to welcome the possibility of there being alternative routes to introducing the same theoretical distinctions. That being said, there is an informative, internal distinction to be drawn among theories of law that tend to favor in more or less explicit ways an account of legal normativity that emulates or purports 559 to emulate the robustness of Nexus reasons. This distinction is visible from all three perspectives (metaphysical, evaluative, explanatory) on the role of normatively relevant facts. I would venture to claim that this distinction roughly corresponds to a very broad sketch of the positivist-antipositivist divide, at least, in the sense that it tracks the pattern of relevance of moral facts for law. The reason I insist on labelling this correspondence as rough is that by contrast with what determines legal content questions of legal normativity are by conceptual necessity answerable by recourse to normative facts either as direct determinants of the content of legal reasons for action and/or as determinants of the normative truth that a given legal fact is a reason for action. In other words, whereas for a legal positivist normative facts will never figure as determinants of legal facts, it is inevitable that they will figure in one way or another as determinants of the normativity of descriptive legal facts. Fortunately, this is not a contradiction in terms as it is perfectly intelligible to submit that much in the same way that ordinary descriptive facts are not intrinsically reason-giving but can, nevertheless, figure in reasons-relation to actions or attitudes, legal facts are not intrinsically reason-giving facts. On this assumption it is possible to assume that the normative fact(s) that will determine the degree of normative pressure or force exerted by legal facts will not also be constitutively implicated in the determination of the facts themselves. As a result it remains an open line of reasoning for the legal positivist to construct her 560 account of legal normativity in such a way that the premises of the latter will not contradict with the metaphysical premises of her account of what determinates the content of the law. Keeping this caveat in mind we can return to the question of how the divide between legal positivism and legal antipositivism can be “inherited” by accounts of legal normativity. As I noticed before, this distinction supervenes on a general background agreement with regard to what counts as robustly normative and as such it is not a distinction that merits a meticulous treatment similar to how we would treat matters marked by deep disagreement. It serves, nevertheless, the purpose of rendering the espousal of the metric approach more fine-grained. The first aspect of this distinction regards the way in which positivist and antipositivist accounts of legal normativity diverge in their assessment of the role of legal content as such in normative action-guidance. Normally, the more irrelevant the invocation of the content of a legal fact is for assessing its reason-giving capacity the closer we get to a positivist understanding of legal normativity, whereas if the converse holds, it is safer to assume that by and large our theory will favor a more substantive role for normative facts not only with respect to the normativity of law but also with respect to its metaphysics. The second aspect of this distinction regards the sources of evaluation of legal agents appealed to by positivist and antipositivist supporters of the Nexus variant. Positivist accounts tend to appraise actions done for legal reasons as being depictive of people’s degree of rationality, whereas 561 antipositivist accounts are more prone to appeal to the virtue of law- abidance as the leading evaluative concept. Finally, I shall argue that whereas both positivist and antipositivist simulations of the Nexus model are committed to a subsumptive or nomological model of normative explanation, they differ with respect to how they define the counterfactual “tenacity” of legal facts. Positivist accounts are more compatible with a systematic appeal to a legal system’s disposition of being generally efficacious, whereas antipositivist accounts are more charitably interpretable as appealing to the normative notion of defect in their treatment of perturbing counterfactuals involving justified law-breaking behavior. A. The Metaphysical Role of Legal Facts Starting with its metaphysical aspect the distinction I have in mind holds between content-independent, as the legal jargon goes, and generic legal reasons for action. Content-independence448 is a technical term used mainly by legal philosophers to describe the broadly positivist claim that the 448 The term was coined by H.L.A. Hart, see his ‘Legal and Moral Obligation’, in A.I. Melden (ed.), Essays in Moral Philosophy, Seattle: University of Washington Press, 1958 at 102, and Essays on Bentham Oxford: Oxford University Press, 1982, pp. 254–255. For a critical discussion of this notion cf. Paul Markwick, ‘Law and Content-Independent Reasons’ in Oxford Journal of Legal Studies (2000) 20 (4): 579-96 and Stefan Sciaraffa, ‘On Content- Independent Reasons: It’s Not in the Name’ in Law and Philosophy (2009) 28: 233–60. 562 obtaining of a reason-for relation between a legal fact and an act-type, or as a legal positivist would say, the fact that a directive is authoritative, is independent of the directive’s specific content and/or consequences. On pain of absurdity this claim does not entail the further claim that the obtaining of this relation is independent of the obtaining of any normative fact whatsoever. The only constraint it imposes is that the normative fact that a legal (descriptive) fact is a reason to φ is grounded in normative facts that are not about the content or the essential function of legal norms.449 On this construal, the fact that it is legally obligatory to φ is a content- independent reason to φ in the sense that the reason why this fact and not another one is normatively salient has nothing to do with its constituent 449 Mark Greenberg refers to content-independence as a necessary but not sufficient condition for the constitution of legal norms as such. He notes that ‘[e]ven if a command has the effect of creating an obligation to do as commanded for a reason independent of the content of the command, it doesn’t follow that the explanation is simply that it was so commanded. There might still be explanatory intermediaries—e.g., the explanation might be that because of the command—not because of its content—it is fair to do as commanded. The property that is needed is the one I have spelled out in the Explanatory Directness Thesis. Content independence is necessary but not sufficient for Explanatory Directness’ (in M. Greenberg, ‘The Standard Picture and Its Discontents’, in L. Green and B. Leiter (eds.), Oxford Studies in Philosophy of Law, Volume. I, New York: Oxford University Press, 2011, p. 39-106, p. 47). I believe that Greenberg’s reasons for associating content- independence with explanatory directness are ill-founded. The latter is a metaphysical thesis about how legal norms are created, not about how legal reasons are created. As a result, authoritative pronouncements may very well create (or constitute) legal norms without explanatory intermediaries but this has no bearing on how facts about the existence of legal norms provide reasons for action. Facts about the provision of reasons for action by legal facts are, par excellence, normative facts. The only qualification that the content-independence thesis imposes is that the facts that ground these normative facts are not about the merits of the content of legal norms. 563 items—that is, with the moral merit of φ-ing or the consequences of its being authoritatively prescribed.450 Joseph Raz explicitly embraces content-independence as a prominent feature of the way in which legal facts, that is, facts about the existence of legal norms, mandate action. At the same time he is cautious enough to add that it is not a distinctive mark of guidance by legal reasons mainly because there are other groups of concepts like promises and vows, offers and threats or requests and commands that also operate on the model of content-independence.451 Provided that legal authority is not the only type of authority capable of providing external guidance, Raz associates the generic notion of practical authority, that is, the normative power of a person or 450 I have deliberately chosen to avoid scholarly variations of the term ‘content-independent reason’ with a view to showcasing the core idea on which competing positivist theories seem to converge. For instance, in Raz’s account of legal positivism the ‘exegetical’ analogue of content-independence would be the first-order component of a protected reason. In Raz’s own unpacking of the term ‘[r]ules and commitments are what I call protected reasons, i.e. a systematic combination of a reason to perform the act one has undertaken to perform, or the one required by the rule, and an exclusionary reason not to act for certain reasons’ (Practical Reason and Norms, (with a new postscript) Oxford: Oxford University Press, 1999, p. 191). My emphasis on excluding the second-order component—also known as ‘exclusionary reason’—is well-thought in the sense that I reserve a distinct position for the concept of an exclusionary reason on the second, evaluative dimension of normative relevance. My idea is that it would ultimately be in the service of Raz’s point to resist registering exclusionary reasons as an ontological addition to an already layered ontology of reasons for actions. The notion of an exclusionary “reason” can be better accounted for as a figurative allusion to the evaluative dimension of norm-guidance in the sense that compliance with an exclusionary reason can be logically understood as the attribution of the evaluative property of rationality to an agent that chooses not to act on competing first-order reasons. 451 See J. Raz, The Morality of Freedom, Oxford: Oxford University Press 1986, pp. 35-37. 564 institution to impose duties on others452 with content-independent reasons precisely because their bindingness or, alternatively, the fact that they favor or require action is not grounded in the value of the content of these reasons but on the fact that they are proper manifestations of the exercise of one’s practical authority. That being said, Raz proceeds to incorporate 452 Whereas it is intuitively possible to accept that practical authority is definable as the normative power to impose duties on others, things get murkier if we try to extend this definition to the case of political or legal authority. The reason is that it is not conceptually clear whether political or legal authority is more like a normative power rather than, say, justified coercion or the right to rule. The latter notion is distinctly Kantian in its origin as it emphasizes the relational character of political authority. In this regard I would hazard to claim that despite appearances it is wrong to reductively interpret the Kantian model of political authority as a model for justifying state coercion. For Kant, the permissibility of state coercion is conceptually entailed by the right of a civil state to rule over its citizens rather than vice versa. In this regard, the exercise of state coercion is non-instrumentally linked to political authority in virtue of its being a manifestation of the latter rather than a means of achieving an end that holds independently of the relation between the rulers and the ruled. By contrast, a more genuine emphasis on the notion of justified coercion can be found in the work of more contemporary political philosophers like John Rawls and Thomas Nagel who despite their markedly Kantian bent have developed their ideas on an original or emancipatory rather than exegetical or scholarly basis. Both stand in favour of a liberal principle of political legitimacy that is triggered by the coercive practices of modern states. Rawls frames the pivotal question as ‘in the light of what reasons and values … can citizens legitimately exercise … coercive power over one another?’ (in his Justice as Fairness: A Restatement, Cambridge: Harvard University Press, 2001, p. 41) with a view to advancing as a solution the claim that ‘political power is legitimate only when it is exercised in accordance with a constitution (written or unwritten) the essentials of which all citizens, as reasonable and rational, can endorse in the light of their common human reason” (loc. cit.). In a similar vein, Thomas Nagel argues that ‘it is this complex fact—that we are both putative joint authors of the coercively imposed system, and subject to its norms…that creates the special presumption against arbitrary inequalities in our treatment by the system…This request for justification has moral weight even if we have in practice no choice but to live under the existing regime’ (in Th. Nagel, ‘The Problem of Global Justice’ in Philosophy and Public Affairs (2005) 33(2): 113–147, at 128-9). 565 the notion of content-independence into his theory of authority by noting that ‘[a] reason is content-independent if there is no direct connection between the reason and the action for which it is a reason. The reason is in the apparently ‘extraneous’ fact that someone in authority has said so, and within certain limits his saying so would be reason for any number of actions, including (in typical cases) for contradictory ones. A certain authority may command me to leave the room or to stay in it. Either way, its command will be a reason. This marks authoritative reasons as content- independent. By this feature they can be distinguished from many reasons, including various other kinds of utterances that are reasons.’453 By contrast, a generic reason is not a term I would hazard to directly attribute to any legal philosopher but, nonetheless, I consider it apposite to the spirit of many antipositivist accounts of legal normativity. For instance, the concept of defect as it is usually employed by defenders of the Weak Natural Law Thesis is standardly associated with the failure of a law to be a rational standard of conduct.454 On this approach a legal fact is generically reason-giving in the sense that its failure to provide a reason for action is indicative of its being a defective instance of a normative kind, so to speak. 453 The Morality of Freedom, supra note 14, p. 35. 454 Mark Murphy’s more apposite formulation states that “necessarily, law is a rational standard for conduct. It is of the nature of law to provide a set of standards that rational agents should take as a guide to their conduct” (in Mark C. Murphy, ‘Natural Law Jurisprudence’ in Legal Theory (2003) 9: 244). 566 Employing Judith Jarvis Thomson’s normative analysis of directives,455 we could reparse this claim as a proposition to the effect that: if L is a legal fact, then for it to be the case that L is a reason for A to φ is for it to be the case that there is a directive kind K (LAW) such that L is an instance of K and if a K doesn’t provide a reason for action, then it is a defective K. Legal facts are, then, generically reason-giving precisely in the sense that they are reason-giving qua instances of a normative kind, rather than reason-giving simpliciter. Taking the above formulation as a template of how legal facts could operate as generic reasons I would like to take a step further and expand the applicability of this concept to antipositivist theories that cannot be classified as belonging to the classical natural law tradition of legal thought. In this regard, I would like to try to extrapolate Mark Greenberg’s view on legal normativity from his elaboration of what he calls the ‘bindingness hypothesis’. According to Greenberg, the bindingness hypothesis is a hypothesis about the way in which legal obligations are related to all things considered moral obligations. He proceeds to formulate this hypothesis by remarking that ‘a legal system is supposed to operate by arranging matters in such a way as to reliably ensure that its legal obligations are all-things- considered morally binding (or, equivalently, that a legal system is 455 See Judith Jarvis Thomson, Normativity, Chicago: Open Court, 2008, pp 207 ff. 567 defective [emphasis added] to the extent that it does not so operate)’.456 Greenberg attempts to illustrate this claiming by offering the example of the relation between the legal obligations about tax payment and the moral obligations about redistribution of resources. If, in a particular legal system, there is a legal obligation to pay tax on one’s income in accordance with a certain scheme the legal system will be morally defective to the extent that it remains morally permissible not to pay the income tax. Greenberg explicitly associates this remark with legal normativity when he clarifies that ‘[a]n intuitive way of putting the point is that the law is supposed to be binding, where that means genuinely binding all things considered—not just legally binding (which the law trivially is)’.457 Keeping this connection in mind we can see how his theory of legal normativity can be read as carrying a generic claim about the way in which facts about the obtaining of legal obligations provide distinct reasons for action. The crucial link in this analysis is to be found in Greenberg’s choice to disassociate his own account of bindingness from general accounts of political legitimacy that purport to explain how we come to acquire a general moral obligation to obey the laws of our political community. Greenberg acknowledges that the bindingness hypothesis is amenable to an alternative formulation that features in its antecedent the possession of legitimate authority and a general moral obligation to obey the law (political 456 M. Greenberg, The Standard Picture and Its Discontents, p. 85. 457 Ibid 568 obligation) in its consequent. To avoid this route he draws a distinction between two putative ways in which the operations of legal systems can change the content of our moral reasons. On the first approach which Greenberg explicitly associates with authority-based theories of law, legal systems achieve bindingness by possessing legitimate authority, that is, by arranging matters so that citizens have a general moral obligation to obey legally authoritative pronouncements. This approach does not endow legal facts themselves with the power of generating particular reasons for action but rather switches their role into that of merely enabling conditions for the instantiation of a general moral obligation to obey what becomes part of the content of the law of a given system. By contrast, Greenberg’s favoured approach purports to turn bindingness into a property of legal facts themselves in the sense that a legal system operates properly when the actions of its institutions change the circumstances that in combination with the most fundamental moral truths or principles determine the content of our moral obligations. On this understanding, legal facts just are these new circumstances which provide new reasons for action. With this distinction in mind we can proceed to re-formulate the above-mentioned formula about generic reasons in a way that closely resembles Greenberg’s conception of bindingness: if L is a legal fact, then for it to be the case that L is a reason for A to φ is for it to be the case that there is a directive kind K (Legal System) such that L is part of the normative content of K and if a K doesn’t arrange matters so 569 that the constituent parts of its normative content do not provide reasons for action, then it is a defective K.458 B. The Evaluative Role of Legal Facts Moving to the second aspect of this distinction, the question we care to ask is how agents are evaluatively reflected in their law-conforming behaviour. As evidenced by the relevant literature, the most appealing option for the legal positivist is to associate one’s treating a legal fact as a reason for action with one’s being (locally) rational. Arguments about the inner rationality of law or the rationality of being guided by authoritative rules are commonly used by positivist philosophers who want to keep their normative vocabulary free of thick moral terms like being law-abiding or thinner moral terms like being morally praiseworthy. On the other side of the spectrum antipositivist appeals to the virtue of law-abidance or the moral praiseworthiness of giving weight to how the actions of legal institutions affect what we ought to do are, as expected, more apposite to the role assigned to morality by antipositivist theories of law. In what follows I will follow the same pattern of exposition by illustrating how the 458 In this more specific formulation bindingness and the concomitant notion of defect are literally speaking properties of legal systems, rather than of legal obligations, or more precisely, of facts about the obtaining of legal obligations (legal facts). 570 same two exemplary instances of legal positivism and legal antipositivism diverge in their treatment of legal facts as standards of agential evaluation. Joseph Raz’s revisionist approach459 to rule-guided behaviour is the main source of information as to how he prefers to model the evaluative impact of legal facts, that is, of facts about the existence of legal norms. The gist of this approach is that under certain conditions it is rational to follow a rule even if the balance of reasons suggests otherwise. This general idea about how rules impact our practical reason gets further specified by Raz’s notion authoritative pre-emption. In Raz’s own words this model states that “an authoritative directive is not simply one reason to be added to the balancing of reasons in determining how to act, but “should exclude and take the 459 I borrow the term from Edward McClennen’s taxonomy of theories of rule-based rationality. According to McClennen, ‘[t]he revisionist agrees with the compatibilist that rule-guided behavior does have a real place within an instrumental theory of justification, but one that forces us to revise the standard account of practical reasoning. The revisionist, then, denies that if the rule gives the wrong result it would be irrational to follow it’ (in Edward F. McClennen, ‘The Rationality of Being Guided by Rules’ in A. Mele and P. Rawling (eds.), The Oxford Handbook of Rationality, Oxford: Oxford University Press, 2004, pp. 222-39, at 225) . He then immediately proceeds to classify Raz as a paradigmatic revisionist by noting that revisionism has attracted a significant following in recent years. One can trace this, in great part, to the influence of Joseph Raz, who argued that it might be rational to act in ways that are not recommended by the balance of reasons. On Raz’s view, rules can constitute “second-order reasons”—exclusionary reasons— not to act on certain first-order reasons, where the latter are the sorts of reasons that lend themselves to the balancing approach. When an exclusionary reason applies, the first-order reasons that are excluded by it are completely removed from the balance of reasons. Thus it would be possible that a balance of first-order reasons recommends an action but that the existence of an exclusionary reason requires the agent to disregard that recommendation and act in a different manner’ (loc. cit.). 571 place of some of them”.460 Reparsed as a principle of rationality pre-emption can be also understood as saying that it is irrational not to see the directive as excluding certain first-order reasons461 from the process of balancing because that would amount to counting the reasons behind the directed action twice: once in the balancing done by the agent herself, and again in establishing the reason backing the authoritative directive.462 My reconstructive intervention consists in my proposing an understanding Raz’s notion of pre-emption and the auxiliary concept of an exclusionary reason as elements of an evaluative account of what it is to be ‘legally’ rational rather than as elements of a metaphysical account of how legal reasons exclude other reasons by virtue of their kind and not by virtue of their weight. 460 J. Raz, The Morality of Freedom, supra note 14, p. 58. 461 There has been a gradual shift in Raz’s view about the type of first-order reasons that are subject to exclusion. In the second edition of Practical Reason and Norms, Raz suggests that "one ought to exclude all the reasons both for and against [the prescribed act] which were within the jurisdiction of the authority’ (supra note 13, p. 191); see also J. Raz, ‘Facing Up: A Reply’ in Southern California Law Review (1989) 62: 1153-235, at 1194). In later work he confines the scope of exclusion to first-order reasons against an act prescribed by a rule claiming that ‘[t]he service conception [of authority] expresses that thought by the thesis that authoritative directives preempt those reasons against the conduct they require that the authority was meant to take into account in deciding to issue its directives’ (‘The Problem of Authority: Revisiting the Service Conception’ in Minnesota Law Review (2006) 90: 1003-44, at 1018). For a critical account of Raz’s oscillation with regard to the scope of exclusion see Ch. Essert, ‘A Dilemma for Protected Reasons’ in Law and Philosophy (2012) 31 (1): 49-75. 462 The Morality of Freedom, supra note 14, p. 58. 572 There is an abundant secondary literature that purports to make sense of how reasons of authority are endowed with this exceptional capacity of excluding other reasons from being part of the case for an action. Part of the difficulty of positioning Raz’s pre-emption thesis within the broader family of exclusive positivist theories is that there is a persistent ambivalence in Raz’s writings about the conception of exclusion between a metaphysical, so to speak, understanding of exclusion as a distinct property of authoritative reasons and a psychological understanding of exclusion as a way of reasoning or being practically rational in contexts of authoritative guidance.463 On many occasions Raz seems to endorse the latter view like when, for instance, he notes that ‘ [t]he only proper way to acknowledge the arbitrator's authority is to take [emphasis added] it to be a reason for action which replaces the reasons on the basis of which he was meant to decide’.464 This subjective language, however, is frequently replaced by a more objective, so to speak, language that portrays legal norms, or, more precisely, facts about the existence of legal norms as defeating other 463 Kenneth Ehrenberg locates the same ambivalence when he remarks that, literally speaking authoritative directives purport to track the reasons that apply to those subject to legal authority, rather than the reasoning that leads an agent to act in conformity with those reasons. Ehrenberg frames this distinction as holding between law’s claiming authority and law’s demanding that we treat authoritative directives as preemptive; see K. Ehrenberg, ‘Law’s Authority is not a Claim to Preemption’ in Wil Waluchow and Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law, Oxford: Oxford University Press, 2013, p. 51-74. 464 J. Raz, ‘Authority and Justification’ in Philosophy & Public Affairs (1985) 14 (1): 3-29, at 10. 573 reasons not by virtue of outweighing or overriding them but by virtue of removing them from deliberation. Raz identifies this unique property of reasons produced by the say-so of an authority with the second-order property of being an exclusionary reason. On this metaphysical approach, exclusionary reasons are second-order reasons not to act on first-order reasons. For instance, in this rather metaphysical tone, Raz observes that ‘[e]very legal rule requiring the performance of an action (or its omission) is a reason for the performance (or omission) of that act and also an exclusionary reason for not acting on conflicting reasons which are not themselves either legal norms or legally recognized reasons’.465 Despite these conflicting formulations it is worth proceeding on the charitable assumption that Raz would not accept an inflationary treatment of the concept of preemption such that both interpretations are taken to convey different aspects of the same idea. A promising way to see that, despite his occasionally misleading prose, Raz actually treats exclusionary reasons not as an addition to the metaphysical inventory of normative entities but as a description of what it is to reason with rules is to focus on his distinction between the behavior of conforming and the behavior of complying with a reason. In the postscript to the second edition of Practical Reason and Norms Raz sets out to clarify how he purports to use the concept of an exclusionary reason by employing an informative distinction between conforming with a reason simply by way of acting as it dictates and 465 J. Raz, Practical Reason and Norms, supra note 13, p. 144. 574 complying with a reason by way of treating the relevant consideration as what makes one’s action worthy of being performed. With this distinction at hand Raz proceeds to label exclusionary reasons as negative second-order reasons whose distinctive mark is that they count against complying (rather than just conforming) with other reasons to act in particular ways. It is the latter association lends definitive support to the psychological role of exclusion. Consequently, it is possible to argue that whereas the only thing that happens from a strictly metaphysical point of view is that the fact that a legal norm exists is or provides a first-order, content-independent reason to act as the norm stipulates, there is a another level at which an agent is required not to treat (or equivalently not to comply with) competing first- order reasons as bearing on the question of whether to act in conformity with a legal norm or not. This second level is not meant to qualify what it is for a legal fact to be a reason for action but rather what it is for an agent to treat a legal fact as a reason for action. To treat a legal fact as a reason to φ just is to treat it as an exclusionary reason which further entails that one must not treat other facts as reasons for not φ-ing. On this approach it is easy to see how pre-emption can be understood as Raz’s preferred specification of the evaluative role of legal facts. What marks the evaluative dimension of pre-emption is precisely the property of irrationality attached to agents who fail to appreciate the exclusionary force of legal reasons. In the present context, the rationality of being guided by legal rules is 575 supposed to be evidenced by the fact that law-conforming agents are more likely to conform with reasons that apply to them independently of the legal authority’s say-so by treating a legal fact as an exclusionary reason, namely, by not treating other non-legal facts as reasons not to act in conformity with a legal norm.466 Consequently, a positivist like Raz could claim that legal facts perform their evaluative role in the sense that treating them as (exclusionary) reasons for action constitutes an instance of rational behaviour. On the opposite of the jurisprudential spectrum rationality gives way to moral standards of appraisal that fit better with the pivotal role antipositivist philosophers accord to morality broadly construed. As noted earlier, there are at least two ways in which an antipositivist can explain what it is to treat a legal fact as a reason for action. Differently put, there are two ways in which an agent can be portrayed as being evaluatively reflected in her law-conforming behaviour on a broadly antipositivist conception of acting for legal reasons. The first and perhaps most prominent way is virtue-ethical in spirit as it features law-abidance as the primary evaluative property. John Finnis attempts in a distinctly eloquent 466 Raz’s own distinction between mere conformity and compliance with reasons counts in favour of this reparsing of exclusionary reasons as a rational property which agents can be possessed of if they choose not to act on competing first-order reasons. In this vein, exclusionary reasons—as opposed to the first-order reasons they purport to protect— are such that they can only be complied with (not conformed) precisely because their function becomes apparent as soon as the agent acts in recognition of the value involved in authoritative guidance. 576 prose to locate a solution to the problem of “how an obligation-imposing law provides a reason for action which would not exist independently of that law”467 in the idea that a correct way to identify “the law-abiding subject’s practical reasoning”468 is to reason as follows: A. We need for the sake of common good, to be law-abiding (emphasis added). B. But where φ is stipulated by law as obligatory, the only way to be law-abiding is to do φ. C. Therefore, we need [it is obligatory for us] to do φ where φ has been legally stipulated to be obligatory.469 On this broadly natural law-inspired conception, legal facts exhibit their normative impact in virtue of enabling the depiction of law-conforming agents as actually law-abiding. Insofar as an agent actually treats the fact that there is a legal obligation to φ as a reason to φ she can be positively evaluated as being a law-abiding citizen. On a more deontological approach the normative impact of treating legal facts as reasons for action need not involve the attribution of a monadic thick evaluative property to agents. The same evaluative task can be carried out in relational terms in the sense that agents who treat their legal 467 John Finnis, Natural Law and Natural Rights, revised edition, Oxford: Oxford University Press, 2011, p 314. 468 Ibid p 315 469 Ibid p 316 577 obligations as generating reasons for action are considered as morally praiseworthy by their fellow-citizens. I must confess that I lack sufficient textual evidence for positioning Greenberg’s account of legal bindingness within the thick-thin spectrum of moral evaluation. That being said, there are occasions in his writings where he talks about our ‘abiding concern’470 with law remarking that ‘the way in which the law is supposed to generate an obligation for a person to act is not by giving the person extremely strong prudential reasons, in particular by threatening that person with sanctions’.471 Greenberg contrasts this legally improper way of ensuring bindingness with what he calls the legally proper way of giving agents reasons for action. Part of what makes this reason-giving legally proper is that these reasons are not merely prudential ones. On Greenberg’s account properly generated legal obligations are those that are morally binding all things considered. In that sense we are allowed to assume that what it is for an agent to treat a legal fact a s reason for action must be similar to what it is for the same agent to treat a moral fact, that is, a fact about her all things considered moral obligation, as a reason for action. Consequently, it would make sense to attribute to Greenberg the view that treating one’s binding legal obligations as reasons for action serves as a standard of moral praise much in the same way that acting in recognition of one’s moral obligations makes a person morally praiseworthy. 470 M. Greenberg, ‘The Moral Impact Theory of Law’, in Yale Law Journal 123(5): 1288- 1342, p. 1341. 471 M. Greenberg, ‘The Standard Picture and Its Discontents’, supra note 12, p. 83. 578 C. The Explanatory Role of Legal Facts For a complete view of what it is for a legal fact to operate as a Nexus- reason we need to fix one more parameter. Perhaps, I should remind again that for it to be the case that a legal fact operates as a Nexus-reason is for it to be the case that it simultaneously performs all three roles (metaphysical, evaluative and explanatory) that I have associated with normatively relevant facts in general. What we have seen so far is that both Raz’s and Greenberg’s theories of law are robust enough to allow legal facts to operate as reasons for action and also be actually treated as such. What remains is a positive answer to the question of whether legal facts can also serve as normative explanations of law-conforming behavior. In this regard, I shall argue that both positivist and antipositivist Nexus variants of the metric approach have a strongly similar conception of how normative explanations of law-conforming behavior are to be modeled. The common, yet not expressly voiced, idea is that there is an informative analogy between legal and ‘nomic’ facts with respect to their explanatory function. This is precisely the reason that I will favor the term ‘subsumptive’ for the model of explanation I will impute to positivist and antipositivist theories of law that implicitly treat legal facts as if they were a non-natural 579 subclass, so to speak, of nomic facts.472 The analogy I aim to bring forward between the explanatory function of legal and nomic facts is purely methodological in its aspiration and it is not meant as an argument in favor of a global treatment of universally quantified facts. Moreover, the ambition of this analogy is moderated by the fact that it is notoriously difficult to single out a metaphysically neutral definition of nomic facts precisely because there is an unabated controversy with regard to their status as necessary, contingent (regularity-based) or dispositional facts.473 Hopefully nothing of crucial importance depends on taking sides in this debate. What is relevantly important is that on either competing conception nomic facts are taken to have independent explanatory force such that atomic facts can be subsumed under them in an informative way. The term ‘subsumption’ is broad enough to engulf under its scope both edges of the analogy I am employing with a view to describing the way in which normative 472 The attribute ‘nomic’ is commonly associated with a particular kind of modality (necessity) that as Alexander Bird describes is ‘not of the ‘hard’ kind associated with full-on metaphysical necessity, but a ‘soft’ kind associated with nomic modality (including explanatory force and the ability to support counterfactuals) and consistent with metaphysical contingency’ (see A. Bird, ‘The ultimate argument against Armstrong’s contingent necessitation view of laws’ in Analysis (2005) 65 (2): 147-55, at 148. The nomic or modal conception of lawhood is not a platitude among philosophers of science. Bird himself holds a critical stance against the view that it is nomic facts which by their nature confer modal force on the relation between the properties that figure as their (of the nomic facts) constituents. On Bird’s dissenting approach nomically related properties stand in the relation they do in virtue of an essential dispositional fact such that under proper conditions one property is essentially disposed to be co-instantiated with the other property. 473 See Marc Lange, Laws and Lawmakers: Science, Metaphysics, and the Laws of Nature, Oxford: Oxford University Press, 2009, pp. 194-195. 580 explanations in law are commonly understood. Painting with a broad brush, all varieties of subsumptive explanation converge in their treatment of universal facts of some sort: to explain an atomic fact just is to show how it falls under some universal fact. The latter fact can be about a law of nature, a normative principle or a nomic generalization of an inexact science. Varieties of subsumptive explanation are common both in scientific and normative domains.474 After all it would be more than compelling to assume that there is a conceptual affinity in appeals to the countable instance of the noun ‘law’ in legal (or para-legal) and scientific contexts alike. More precisely, the idea is that insofar as legal facts are universal in the sense that they are multiply exemplifiable by atomic or singular legal facts about what one is legally obligated to do in a particular circumstance, it follows that event tokens of law-conforming behavior can be normatively explained by reference to an obtaining general legal fact. 474 Mark Schroeder informatively associates representatives of the British moral rationalist movement of the 18th century like Ralph Cudworth, Samuel Clarke and Richard Price with what he describes as the standard model of normative explanation. In Schroeder’s reconstructive definition of the subsumptive model of normative explanation ‘[t]he explanation that X ought to do A because P follows the Standard Model just in case it works because there is (1) some further action B such that X ought to do B and (2) not just because P and (3) P explains why doing A is a way for X to do B’ (in M. Schroeder, ‘Normative Explanations’ in Journal of Ethics & Social Philosophy, (2005) 1 (3): 1-27, at 11). Schroder takes the example of promise-making as a typical candidate for normative subsumption. The idea is that facts about promises are not independently reason-giving but rather trigger the instantiation of an antecedent, general moral obligation to keep promises. In Schroeder’s own analytic remark, ‘[i]t is not qua showing up for lunch at Plato’s Diner that an action is ever right or wrong or something I ought to do. It is only because it is an instance of keeping a promise, which is something that I independently ought to do, that I ought to do it’ (ibid, 13). 581 This ‘nomological’ model of normative explanation can be further adjusted to one’s jurisprudential allegiances such that both for a positivist and an antipositivist legal facts can be likened to the nomic generalizations of the inexact sciences thus being capable of supporting a basic set of counterfactual conditionals. The counterfactual stability of legal facts is commonly cashed out in terms of a ‘general efficacy’ condition on legal systems. The latter term can be understood in dispositional terms such that the norms constituting the content of the law of a legal system at a particular time are such that they are normally obeyed. As Shapiro notes, ‘[g]eneral efficacy does not require that community members actually accept the law’s legitimacy; they may comply out of fear of punishment, habit, or peer pressure. But if most fail to conform to the dictates of the regime claiming authority, then such a community cannot be said to have a legal system’.475 On this construal a legal fact can enjoy the status of a 475 S. Shapiro, Legality, supra note 10, p. 202. More traditional accounts of the notion of efficacy can be found in the work of HLA Hart and John Austin. Hart thought that general conformity is a necessary but not sufficient condition of efficacy noting that an attitude of acceptance of the system’s secondary rules is what ultimately determines the quality of a legal system’s efficacy through time (see his The Concept of Law, Oxford: Clarendon Press, 1961, 2nd edition with postscript by J. Raz & P. Bulloch (eds.), Oxford: Oxford University Press, 1994, pp. 100-1). Given his reductive view on law John Austin on the other hand was led to associate the efficacy of law not just with the degree of actual conformity with the law (the habit of obedience as he calls it) but with the upholding of sovereignty (see his Lectures on Jurisprudence or the Philosophy of Positive Law, 4th edition, revised and edited by Robert Campbell, Vol. 1, London: John Murray; reprint, Bristol: Thoemmes Press, 2002, pp. 220-1). 582 quasi-nomic generalization so long as it can exhibit a sufficient degree of invariance under counterfactual perturbations.476 This scope of invariance may include platitudes to the effect that a legal norm would have still been complied with even if law-subjects do not actually attach any moral value to it. The latter counterfactual can be supported by a legal fact for as long as it remains conceptually consistent with what is conceptually entailed by one’s jurisprudential theory. On a positivist approach, a legal fact obtains in the previous counterfactual condition and thus exhibits explanatory potency insofar the same counterfactual is conceptually consistent with the existence of a positivistically modeled legal system. This would necessarily presuppose the obtaining of a set of conditions commonly associated with the positivist account of a legal system such as the operation of a mechanism of coercive enforcement and dispute settlement, coordinative behavioral patterns, peer pressure or a system of awards that can prudentially motivate an average citizen to be law-obedient. Joseph Raz’s specification of the efficacy of legal norms involves a shift of focus from the practices of law-making institutions to the practices of law-applying institutions. In his own words, ‘efficacy… is 476 Philosophers like Hans Kelsen have gone a step further by arguing that the efficacy of laws is part of their validity conditions. A general legal norm is regarded as valid only if the human behavior that is regulated by it actually conforms with it, at least to some degree. A norm that is not obeyed by anybody anywhere, in other words a norm that is not effective at least to some degree, is not regarded as a valid legal norm. A minimum of effectiveness is a condition of validity’ (Hans Kelsen, Pure Theory of Law, M. Knight, trans., Berkeley: University of California Press, 1960/1967, p. 11). 583 relevant only insofar as it affects the practices of the law-applying institutions. If, for example, the courts consistently refuse to act on a law, that law is not part of the legal system the courts operate, despite the fact that it was lawfully enacted and was never repealed… According to this approach, then, the existence of the law is logically related to the practice of the law-applying organs’.477 Raz proceeds to associate this conception of efficacy in application with what he takes to be the proper type of counterfactual supported by facts about the existence of legal norms. The definition he stands up for serves to mitigate the demandingness of general efficacy by focusing on the counterfactual attitude of recognition of the validity of a legal norm by the courts. He notes that ‘condition of a law's membership in a legal system is, however, a counterfactual: if presented with the appropriate case the courts would act on the law.478 This may be true even though they are never-or seldom-presented with the appropriate case. Prosecutions in criminal cases may seldom be made, and civil cases may always be settled out of court in a way contrary to the law. Therefore a law may be valid even though it is largely inefficacious.’479 477 J. Raz, ‘The Identity of Legal Systems’ in California Law Review, (1971) 59 (3): 795-815, at 803-4. 478 At a later point Raz introduces a probabilistic criterion that can be authentically determined by the law-applying institutions of a given system. According to this criterion, a legal system and consequently its norms remain efficacious ‘if a certain ratio of cases of obedience to its laws to the total number of opportunities to obey them obtains’ (in J. Raz, The Concept of A Legal System: An Introduction to the Theory of the Legal System, 2nd edition, Oxford: Clarendon Press, 1980, p. 203). 479 Ibid, p. 804. 584 On a broadly natural law approach, the counterfactual that legal facts are supposed to be minimally successful at supporting is more likely to be generic by virtue of its content. Again there are two ways to frame this counterfactual condition of stability. Assuming the correctness of the weak natural law thesis—that is, necessarily anything that does not exhibit a particular kind of normative feature, for example, serving as a rational standard for conduct—is either not law or is defective qua law—it is possible to determine the content of the relevant counterfactual by appeal to what distinguishes an a-legal entity from something that is law but defective as such. Hence the counterfactual stability line can be drawn along the intersection of these two instances such that a legal norm remains efficacious and thus explanatorily potent if it is constitutionally capable of serving as a rational standard for conduct even if it fails to non-defectively realize its capacity.480 Appeals to constitutional capacity can be made intelligible by a common idea permeating both the strong and weak version of natural law theory according to which something is constitutionally incapable if its composition, content or configuration is such that it cannot even count as eligible for performing the function of rational guidance. On the natural law construal of legality, a legal fact can enjoy the status of a nomic generalization insofar as it is capable of supporting the above 480 For the purpose of formulating a natural law condition of counterfactual stability I am relying heavily on Mark Murphy’s account of constitutional capability. For the latter notion, see his ‘The Explanatory Role of the Weak Natural Law Thesis’ in Wil Waluchow and Stefan Sciaraffa (eds.), Philosophical Foundations of the Nature of Law, Oxford: Oxford University Press, 2013, p. 3-21 585 counterfactual, which entails that even if it is somehow defective it can still preserve its explanatory potency. To the contrary would-be legal facts that given a specified set of criteria are constitutionally incapable of providing rational guidance—think of morally odious laws or extremely vague or irreversibly contradictory laws—will fall short of qualifying for legal facts and thus fail to explain their instances in any informative way. In a slightly different manner antipositivist philosophers that deviate from the natural law canon are more likely to shift their focus from the constitutional capability of legal norms to serve as standards of rational conduct to the capacity of legal obligations to be morally binding all things considered. This is precisely the line followed by Mark Greenberg when he claims that the actions of legal institutions are supposed to make the moral situation better by ensuring that the legal obligations they create provide decisive reasons for action. Greenberg makes this point explicit by combing two claims about the nature of legal systems. The first claim is already familiar; it states that legal systems are supposed to ensure that the actions of legal institutions generate legal obligations that are morally binding (Bindingness Hypothesis). The second claim is that ‘it is part of the nature of law that a legal system is supposed to change our moral obligations in order to improve our moral situation—not, of course, that legal systems always improve our moral situation, but that they are defective as legal systems to the extent that they do not.’481 The combination of these two 481 M. Greenberg, ‘The Moral Impact Theory of Law’, supra note 33, p. 1294. 586 claims results in the view that a legal system is supposed not merely to produce binding legal obligations but to do so in a way that improves the moral situation. With this combined claim at hand we may proceed to formulate a condition of counterfactual stability for legal facts that does not depend on a general efficacy clause but rather invokes the bindingness of legal facts as the basic criterion of counterfactual tenacity. In other words, the idea is that legal facts will be capable of explaining atomic instances of law-conforming behavior to the extent that they remain morally binding in what Greenberg calls the legally proper way.482 Much in the same way that the explanatory status of moral principles is not affected by their actual violation general legal obligations do not lose their explanatory potency just because they are violated in practice. So long as they are binding in a way that makes the moral situation better they retain their capacity to serve as normative explanations of actual conduct. 482 In a footnote to ‘The Moral Impact Theory of Law’ Greenberg acknowledges the strong connection between the notion of the legally proper way of changing the moral profile and the improvement of the moral situation. Despite the fact that he is at pains to fully determine the corpus of legally proper ways he notes that ‘it is part of the Moral Impact Theory that the legal institutions that are relevant for its purposes—the ones that generate those moral obligations that are legal obligations—are ones that are supposed to improve the moral situation…this point is really an elaboration of the notion of the legally proper way of changing the moral profile…That is, in order for a change in the moral profile to come about in the legally proper way, it must be the result of action by a legal institution that, by its nature, is supposed to improve the moral situation.’ (‘The Moral Impact Theory of Law’, supra note 33, p. 1324). 587 CHAPTER IV Varieties of Disagreement about Legal Normativity The picture I have presented so far serves to showcase how positivist and antipositivist applications of the metric approach can converge in their espousal of the Nexus variant, namely, the most robust version of how law can be a source of normative reasons for action. The crucial test for verifying a theory’s affinity with the Nexus model is to test whether the 588 facts it postulates as normatively relevant can perform in a synchronized manner the three distinct roles (metaphysical, evaluative and explanatory) I have associated with the notion of normative relevance. On the one hand I argued that an authority-based theory of legal normativity like Joseph Raz’s theory of reasons generated by a legal authority contains the necessary elements for being modelled as a Nexus- type theory. More precisely, I tried to show that three distinct features of his theory of law, namely, content-independence, preemption and efficacy enable what Raz takes to be a fact about the existence of legal norms to mandate an action (metaphysical role), to make its actual treatment as a preemptive reason a standard of rational agency (evaluative role) and to normatively explain instances of law-conforming behavior (explanatory role). On the other hand, I have tried to apply a similar method with a view to testing whether Greenberg’s moral impact theory of law is eligible for being associated with the Nexus variant of the metric approach. The findings have been equally encouraging thanks to Greenberg’s strong association of proper legal obligations with all things considered moral obligations. By analogy the three features of his theory that inclined me to label him as a Nexus theorist are the generic grounding of legal reasons for action, the legally proper way of changing the moral profile and the bindingness hypothesis. By virtue of the first feature it turns out that it is an essential 589 function of legal facts to provide decisive reasons for action in the sense that their failing to be biding all things considered marks a failure of the legal system that produced them. Secondly, part of what it is to be a properly generated legal obligation is that it enables agents to act independently of the mere pressure of prudence which further implies that their treating a legal fact as a reason for action can result in their being considered as morally praiseworthy. Finally, precisely because legal obligations are taken to be morally binding all things considered they retain the same degree of ‘recalcitrance’ to the disturbing effect of their actual violations which makes them fit for serving as counterfactually stable general explanations. In what follows I would like to steer the discussion back to its original focus on the nature of theoretical disagreement about law. By way of a similar breakdown to the one I reserved for the concept of theoretical disagreement about the grounds of law I would like to explore the hypothesis that legal normativity much like legal truth can be an object of theoretical disagreement. More precisely, the idea I have in mind is that the site of theoretical disagreement about the normativity of law can be properly reconfigured if we allow its scope to be wide enough to host both first-order and second-order disputes. In this regard I will suggest that a proper statement of the site of theoretical disagreement about legal normativity must unpack its object in a way that tracks the same challenges we encountered in the first part with regard to the metaphysics of legal 590 content. To this effect I would like defend the idea that the relevant kind of theoretical disagreement is about the grounds of the normative facts about the way in which facts about legal content bear upon conduct. In contradistinction to the previous question of what grounds facts about legal content our present concern is about the grounds of normative facts about legal-content-facts, or equivalently, about what grounds the normativity of facts about legal content. Before proceeding with a more detailed presentation of how this type of disagreement can bifurcate into first-order and second-order variants, I would like to unpack a bit further the rationale behind the level of abstraction I have chosen to use in describing the site of theoretical disagreement about the normativity of law. A first point of caution regards the notion of facts about legal content. To avoid undermining the effort I have put in the first part of the thesis in order to keep a broad view of the metaontological pathways leading to the postulation of a theory’s privileged facts, I will refrain from talking about legal facts and instead refer to facts about legal content in the hope that this term is apt to also include reducing facts (like facts about the existence of plans) or other types of fact like dispositional facts about enforceable obligations and rights. Secondly, I have deliberately chosen not to specify the structure of normative facts about the relevance of legal-content-facts precisely because on the two- dimensional framework I developed in the first section of this part reason- giving is not the only way in which a fact can be normatively relevant. 591 Consequently, it will matter for our purposes whether two competing theories of legal normativity converge in their metanormative views on the precise way in which facts about legal content can be normatively relevant. If, for instance, two theories converge in their espousal of the general principles of the Nexus model their disagreement becomes ipso facto first- order as it turn out to regard the grounds of one and the same type of normative fact, namely, the fact that a legal fact gives someone a reason to act in a particular way. By contrast, if two theories diverge with regard to their metanormative commitments their disagreement can become intelligible as a second-order dispute about the way in which facts about legal content are normatively relevant. With these caveats in mind I intend to conclude this section in two distinct steps. The first step will feature two metanormatively convergent theories of law, namely Joseph Raz’s account of reasons generated by a legal authority and Mark Greenberg’s account of binding legal obligations, as being engaged in a first order dispute about the grounds of legal reasons for action. More precisely, I shall argue that these two theories can be meaningfully juxtaposed on the basis of a common, first-order normative controversy, namely the political relevance of legal reasons. The second step will feature Ronald Dworkin’s account of the force of law and Scott Shapiro’s argument about the inner rationality of law as instances of a partial deviation from the Nexus rationale. Much in the same way that the same two theories were presented as being engaged in a second-order 592 dispute about the possibility of legal constitution, I shall argue that what makes their opposition to Nexus-type theories of legal normativity intelligible is their dissenting view on the normative relevance of legal facts rather than the political relevance of legal Nexus-reasons. That being said I should caution against forming the impression that, for instance, Dworkin’s account of reasons of integrity is purely metanormative in its aspiration. Besides the fact that Dworkin himself would abhor such a classification for reasons that are well-known, the point is rather that his preponderantly first-order account of the political relevance of reasons of integrity can be meaningfully contrasted with Nexus-type theories by way of questioning their metanormative assumptions about the way in which legal facts display their normative relevance. IV.1. First-order Disagreement about the Grounds of Nexus Facts One type of episode of disagreement about legal normativity can transpire against a common metanormative background. Given the essential profiles of the theories I have chosen to juxtapose it turned out that Joseph Raz’s account of reasons given by a legal authority and Mark Greenberg’s account of binding legal obligations are the only theories that seem to converge in their metanormative assumptions. As noted earlier, both theories fit nicely with the most robust variant of the metric approach to legal normativity. In 593 both cases legal facts can be modelled as providing reasons for action of the Nexus kind precisely because in the both cases a legal fact is such that it can simultaneously provide normative guidance and depictively impact an agent’s evaluative profile by way of being actually treated as a reason for action. That being said their metanormative convergence ends there as evidenced by the fact that the two theories are radically different both in their conception of the nature of legal facts and in their account of what grounds the reason-giving force of these facts. With regard to the former difference I should note again that for Raz legal facts are descriptive facts about the existence of legal norms whereas for Greenberg legal facts are normative facts about the obtaining of legal obligations, powers, privileges and immunities. This metaphysical differentiation is informatively inherited by their latter justificatory difference, namely, the way in which the reason- giving force of legal facts is grounded. It is the latter type of difference that constitutes a proper object of first- order theoretical disagreement about the normativity of law. More precisely, the hypothesis I want to explore is how a Razian positivist and a Greenbergian antipositivist can meaningfully disagree about what grounds the normative fact that a legal fact is a reason to act in a particular way. I shall name this type of normative fact a Nexus fact precisely because it is a fact about the way in which a legal fact is robustly reason-giving. It is important to notice that the grounds of this dispute are not transparent to the grounds of another, metaphysical type of dispute, namely the question 594 of what grounds legal facts themselves! As one may recall, the latter type of dispute is such that a proponent of the descriptive character of legal facts and a proponent of the normative character of legal facts can meaningfully disagree only at a higher level of abstraction where the question at stake is about the nature of legal grounding, namely, about the question of whether the grounding (rather than the grounds) of legal facts is a brute fact or a fact made intelligible by recourse to conceptual or normative considerations. By sharp contrast, regardless of what one takes to be the character of legal facts per se, we also care to answer the first-order question of what grounds another type of NON-legal, normative fact, namely, the fact that a legal fact (whether normative or descriptive) is a reason to act in a particular way! In the light of this crucial clarification I suggest bring on stage again the two familiar aliases, Gonzo and Froddo as illustrative impersonations of a Razian positivist and a Greenbergian antipositivist, respectively. For brevity I will replace my repetitive use of the expression ‘legal fact’ with the variable L mainly because in the current context it does not matter whether a legal fact is structured as a descriptive fact about the existence of legal norms or as a normative fact about the obtaining of a legal obligation. We may take the following exchange between them as an instance of the relevant first-order dispute I want to showcase: 595 (a)Gonzo: The fact that L is a reason for A to φ in C is grounded in the fact that A is more likely to conform to reasons that apply to her independently of the actions that brought about L by φ-ing in C. (b)Froddo: The fact that L is a reason to φ in C is grounded in the fact that the actions that brought about L changed the morally relevant circumstances in a way that makes φ-ing in C the right thing to do. This exemplary episode of disagreement between Gonzo, the Razian positivist, and Froddo, the Greenbergian antipositivist, is centered on the question of whether and how legal facts can change the content of our normative reasons. From Gonzo’s perspective legal facts instead of changing our antecedent reasons they replace them with reasons provided by a legal authority in the grounds that by acting on these new reasons increases the probability of conforming to our antecedent reason that obtain independently of the actions of legal institutions. From Froddo’s perspective, legal facts are the result of the right-making impact of actions of legal institutions in the sense that their obtaining in the legally proper way marks a distinctive change in the content of our antecedent moral reasons. 596 On this picture, the Razian Normal Justification Thesis483 and the Greenbergian Legal Propriety Thesis484 present an informative contrast between two visions of law’s political relevance. This contrast is identified by the prominence of the role of authority in the former account and its striking absence in the latter account. The Razian conception of authority is paradigmatically instrumental in the sense that exercises of legal authority do not purport to effect a substantive change in the moral landscape but to facilitate our responsiveness to its antecedently valid requirements.485 What 483 In Raz’s own words, the Normal Justification Thesis asserts that ‘the normal way to establish that a person has authority over another person involves showing that the alleged subject is likely better to comply with reasons which apply to him (other than the alleged authoritative directives) if he accepts the directives of the alleged authority as authoritatively binding and tries to follow them, rather than by trying to follow the reasons which apply to him directly’ (in The Morality of Freedom, Oxford: Oxford University Press 1986, p. 53). 484 I have deliberately chosen this linguistic innovation with a view to illustrating in a symmetric way the contrast between these two views. 485 Stephen Darwall contends that meeting the Normal Justification Thesis (NJT) is neither necessary nor sufficient for establishing that some person or institution possesses legitimate authority. His main line of criticism invokes the claim that Raz’s understanding of practical authority as the capacity to create preemptive reasons holds him hostage to the so-called wrong kind of reasons problem. Darwall proceeds to define a central instance of this problem by remarking that In considering whether to believe some proposition p, for example, it is simply impossible to conclude one’s deliberation in a belief that p by reflecting on the desirable consequences of believing p. That is a reason of the right kind for desiring to believe that p, but not for believing that p’ (S. Darwall, ‘Authority and Reasons: Exclusionary and Second-Personal’ in Ethics (2010) 120 (2): 257-78 at 264). Darwall believes that Raz is vulnerable to this argument because, as he takes it, Raz claims that authority can be normally justified in virtue of the desirable effects (conformity with antecedent reasons) of treating authoritative directives as preemptive reasons. As a result, Darwall argues that the desirability of preemptive reasoning is the wrong kind of reason to justify one’s belief that A has genuine practical authority over B. The problem with 597 is crucially important is that on this positivistic picture legal authority is supposed to correctly track reasons whose content can be specified without reference to the concept of authority. By sharp contrast, Greenberg’s antipositivist vision reserves no place for authority for the simple reason that on this view the normative impact of the actions of legal institutions is taken to be of right-making, rather than of the facilitative sort which means that institutional actions are deemed capable of changing what is the right thing to do much in the same way that ordinary descriptive facts can make an antecedently morally indifferent action morally obligatory. That being said, there is a crucial ambiguity in the notion of tracking antecedent reasons which has in part misguided, as I believe, Greenberg in his criticism of Raz’s account of legal authority. In the Standard Picture Greenberg drives a wedge between two ways in which law can achieve bindingness. The first approach which he rejects is the morality-on-law Darwall’s criticism is that Raz would be happy to accept this conclusion and still argue that it does not affect the justificatory relevance of NJT. The reason is that Darwall takes NJT to be a cumulative ground both for ascriptions of practical authority and applications of preemptive reasoning. But as I also briefly commented in the main text, NJT only regards the former, not the latter instance. NJT does not state that A has authority over B because B has a reason to desire the benefits of treating A’s directives as preemptive reasons but rather because B’s acting as the directive commands is a proper means of leading B to comply with reasons that apply to her independently of A’s say-so. This point is made by Raz himself in a reply to Darwall’s criticism; see his ‘On Respect, Authority, and Neutrality: A Response’ in Ethics (2010) 120 (2): 279-301, at 299). For a critical account of both positions see Daniel Star and Candice Delmas, ‘Three Conceptions of Practical Authority’ in Jurisprudence (2011) 2 (1): 143-60. 598 direction of dependence by virtue of which ‘the law changes morality simply by creating legal obligations that were not previously moral obligations. Given an obligation to obey the law, the law tows morality behind it.’486 By contrast, the second approach which Greenberg comes to adopt is the law- on-morality direction of dependence by virtue of which the law changes morality by changing the circumstances that, in combination with the most fundamental moral truths, determine our moral obligations. Greenberg, then, proceeds to associate the former morality-on-law approach with the Standard Picture, namely, the broadly Razian way of directly constituting the content of the law through the issuing of authoritative pronouncements. As Greenberg himself remarks, the crucial difference between these two approaches is that in the former case bindingness is supposed to be achieved by virtue of a general obligation to obey the content of authoritative pronouncements, whereas in the latter case there is no such general moral obligation. The source of Greenberg’s misunderstanding becomes visible the moment he argues that as long as someone subscribes to the Standard Picture ‘the only way in which bindingness can be reliably achieved is by arranging matters so that citizens have a moral obligation to obey legally authoritative pronouncements. Thus, SP makes central the question of under what conditions citizens have a moral obligation to obey legally authoritative pronouncements’.487 Despite Greenberg’s recognition 486 ‘The Standard Picture’, p. 98. 487 Ibid p. 99. 599 of Raz’s explicit rejection of the possibility of a general moral obligation to obey the law, he proceeds to argue that Raz remains, nevertheless, captive to the problem of achieving bindingness because his piecemeal account of authority-induced reasons for action is too weak to account for bindingness as Greenberg understands it. In this regard he remarks that ‘since legitimate authority will be piecemeal, there will not be a single question of whether an authority is legitimate, but a vast number of more specific questions. Raz’s theory therefore makes it difficult to know when the government has authority over someone, and thus whether the government can ensure bindingness.’488 I believe that Greenberg’s emphasis on his understanding of bindingness puts the epicenter of his disagreement with Raz in the wrong ballpark mainly because he takes for granted that overall bindingness is the only way in which law can be normative. Recall that the bindingness hypothesis does not amount to the claim the law is the source of reasons for action but to the far more robust claim that for every legal obligation there can be a moral obligation with the same content. But this is not a vision that a positivist like Raz has to embrace in order to engage in an informative disagreement with an antipositivist like Greenberg. The reason is that for Raz the sources, that is, the grounds of legal normativity are extra-legal in the sense that it will always be an open moral question whether at a particular circumstance the law succeeds at providing normative guidance. 488 Ibid p. 101. 600 For Raz, the obtaining of a legal fact does not eo ipso mark a change in the moral profile precisely because the way in which Raz envisages the normative impact of law involves no legally induced changes in the pre- existing moral profile. By contrast, on Greenberg’s account the sources of legal normativity are distinctly legal in the sense that whenever a new legal fact obtains there should be a change in facts about what is the right thing to do because, on his view, the actions of legal institutions operate as right- making facts. I hope that these clarifications can help our understanding of where precisely the source of disagreement between these two theorists should be located. Although Greenberg tends to elevate this disagreement at the metanormative level, I remain confident that the crux of his disagreement with Raz is purely first-order and hence political. Greenberg’s attempt to tow this disagreement to the metanormative side is evidenced by the fact that he attributes to Raz and more broadly to defenders of the Standard Picture a failure to understand how bindingness is supposed to work. But this is not a failure that Raz deserves to own precisely because he rejects bindingness on first-order grounds, namely, for the reason that the legitimacy of legal authority is manifested in a system’s capacity to facilitate our response to antecedent reasons rather than in a system’s capacity to constitute reasons. 601 V.2. Second-order Disagreement about the Normative Relevance of Legal Facts At first sight it seems that given how I chose to frame the dispute between the two imaginary discussants it is conceptually impossible for a planning positivist or an interpretivist to intelligibly participate in the current version of the dispute without rendering it merely verbal. On the one hand, I plan to demonstrate that an interpretivist like Dworkin would retort that the direct effect of legal facts consists in their imposing constraints on how government should treat its citizens rather than on how citizens themselves should act. This stance preserves the concept of a normative reason as a salient feature of legal normativity but it directs its application to institutional rather than ordinary action. On the other hand, there is ample evidence that a planning positivist like Shapiro would be very suspicious of any association of legal facts with reason-giving of any sort, robust or institutional. The reason is that for Shapiro facts about the existence of plans are normatively inert and only attitudinal facts about the adoption of plans by institutional actors within a legal system can exert a normative pressure of some sort. As I intend to describe in the relevant position, Shapiro’s account of legal normativity is very thin in the sense that the kind 602 of normativity he attaches to legal activity is not associated with the relation between the output of this activity, namely, plans, and the guidance of conduct of ordinary citizens. The latter type of action-guidance is, according to Shapiro, a dispositional matter precisely because he believes that citizens can be guided insofar as they are either morally or prudentially disposed either by themselves or through a system’s mechanisms of enforcement to carry out the planning output of their government. The only type of normative constraint imposed by law regards the authorization of legal officials to plan for others and this type of constraint is not associated with facts about the existence of plans but with attitudinal facts about the beliefs of legal officials in the efficacy of a plan as well as their representation, sincere or not, of a legal system’s master plan as morally legitimate. Consequently, the only normative constraint that these attitudinal (not strictly legal in Shapiro’s qualified sense) facts impose regards the consistency of attitudes of commitment of legal officials vis-à-vis following a plan, filling it out, ensuring its consistency with other plans and refraining from reconsidering it absent a compelling reason to do so.489 Fortunately this is not a real impasse as it is perfectly possible to engage both theories in an intelligible dialogue with the Nexus-type theories analysed above provided that we are willing to elevate their objections at a higher level of abstraction. In what follows I will start with Dworkin’s account of the force of law in the hope that I can demonstrate how his main 489 See S. Shapiro, Legality, Cambridge MA: Harvard University Press, 2011, p. 183. 603 concern about the normative demands of law can be recast as a metanormative objection to theories of legal normativity that relate the reason-giving force of legal facts to their capacity to guide citizens. In this regard I shall argue that whereas Dworkin does not intend to disassociate the citizen’s perspective from legal guidance he wishes to draw a distinction between the institutional reasons provided by legal facts themselves and the reasons for action provided by a general associative obligation to obey the law. At a further step, I shall elaborate on Shapiro’s invocation of the inner rationality of law with a view to exploring the nature of his objection to more robust accounts of legal normativity. The hypothesis that I will venture to defend is that Shapiro would reject the platitude that law is robustly action-guiding on the grounds that “legal’ plans themselves are normatively relevant in virtue of their being represented as serving a moral aim. Attitudinal facts about the moral representation of plans by legal officials rationally constrain the way in which they can exhibit or retract their commitment to following a plan. The reason I have decided to put Dworkin’s case on top of the order of analysis is that the position of his account is contiguous with the occupants of the Nexus quadrant precisely because both share the belief that legal facts are reason-giving in one way or another. One should be warned that Dworkin’s references to the normativity of law are rather scattered across his voluminous work such that it becomes interpretively challenging to attribute to him specific commitments. First off, Dworkin’s encoded way of 604 referring to the normativity of law features the expression ‘the force of law’ as its main leitmotiv. Our first acquaintance with this concept takes place in Law’s Empire where Dworkin illustratively divides the path to law’s imperial realm into two main components, the grounds of law which, as we already discussed, regard the grounds of legal facts, and the force of law490 which Dworkin defines as ‘the relative power of any true proposition of law to justify coercion in different sorts of exceptional circumstances’.491 Dworkin appeals to ordinary legal practice to justify this distinction noting that ‘[o]ur lawyers and citizens recognize a difference between the question what the law is and the question whether judges or any other official or citizen should enforce or obey the law’.492 The same point is presented as being verified on theoretical grounds. In this regard, Dworkin supplements his phenomenological claim with the claim that ‘conceptions of law, which are theories about the grounds of law, commit us to no particular or concrete claims about how citizens should behave or judges should decide cases’.493 490 Dworkin locates the bond between these two components in the fact that the grounds of law are also part of what grounds the normative fact that law provides reasons for enforcement upon demand. In his words, ‘[t]hese two parts must be mutually supportive. The attitude a full theory takes up on the question how far law is commanding, and when it may or should be set aside, must match the general justification it offers for law’s coercive mandate, which in turn is drawn from its views about the controversial grounds of law’ (R. Dworkin, Law’s Empire, Cambridge, MA: Belknap Press, 1986, p. 110). 491 Loc. Cit. In a similar vein Dworkin intensifies connection between legal facts and reasons for enforcement when he remarks that ‘in a flourishing legal system the fact of law provides a case for coercion that must stand unless some exceptional counterargument is available’ (loc. cit.) 492 Ibid, p. 109. 493 Ibid, p. 112. 605 In the light of this distinction between the grounds of law and the force of law there are two parallel questions I would like to raise, one about the taxonomical evidence that Dworkin’s comments provide for his inclusion in the same normative quadrant that features practices of thick evaluation and another about the nature of his hypothetical disagreement with Nexus theorists like Raz or Greenberg. As I intend to argue, answering the first, taxonomical question makes our guess of the answer to the second question a very easy task. If it turns out that for Dworkin legal facts, which in his case, as we may recall, are more specifically formulated as facts about the instantiation of principles of political morality by obligations or rights, provide reasons for action whose normative impact is of the constitutive rather than of the depictive sort, the metanormative grounds of his disagreement with Nexus-type treatments of legal facts will become readily comprehensible. To see why this could be the case we should recall that Nexus reasons differ from practice-based reasons494 in virtue of the fact that whereas the former condition one’s evaluation qua agent on their actual treatment as reasons, the latter enable one’s evaluation by requiring only their counterfactual treatment as reasons. In the relevant position I described this contrast as being between one’s depiction as being 494 By this very general term I intend to cover a wide range of institutional or social facts that give rise to reasons for action. As we saw earlier, a large group of practice-based reasons are reasons provided by facts about the instantiation of thick evaluative properties (i.e. the fact that φ-ing in C is generous is a reason to φ). Another category is legal reasons as Dworkin purports to understand them. There may be other types of practice-based reasons that that could fit in this quadrant like promissory reasons or reasons to play by the rules of a game. 606 responsive to reasons in what she does and one’s constitution as being kind, generous or cruel by what she does. Consequently, if reasons of integrity, as I proposed to call them, are practice-based reasons the grounds of Dworkin’s hypothetical dispute with a Nexus theorist must include reference to the fact the normative impact of legal facts is constitutive rather than depictive. This is a metanormative, rather than first-argument precisely because it locates the relevant disagreement in what makes the ‘practice’ quadrant a more hospitable habitat for legal facts than the Nexus quadrant.495 As already evidenced by the textual references I provided just above Dworkin clearly associates the normative force of ‘true legal propositions’, or, in more precise language, of legal facts, with their capacity to justify the enforcement of a right or obligation on demand. Dworkin repeats that same point in his latest work when he remarks that ‘legal rights [and their correlative duties] are those that people are entitled to enforce on demand, without further legislative intervention, in adjudicative institutions that direct the executive power of sheriff or police.’496 This association between 495 It is a conceptual implication of the two-dimensional model I am defending here that the nature of disagreement between theories occupying different quadrants will always be metanormative whereas disagreements between theories figuring in a common quadrant will always be instances of first-order normative disputes. 496 Justice for Hedgehogs, Cambridge, MA: Harvard University Press, 2011, p. 406. An alternative formulation in the same work states that ‘[l]egal rights are political rights, but a special branch because they are properly enforceable on demand through adjudicative and coercive institutions without need for further legislation or other lawmaking activity’ (ibid, p. 407). 607 legal facts and reasons of enforcement on demand is accompanied by a distinction between the institutional reasons for enforcement provided by legal facts and the reasons for action provided by the fact about the obtaining of a political obligation, namely, a general moral obligation to obey the law.497 Dworkin frames this distinction as being between the problem of the legitimacy of coercive power and the problem of political obligation. In this regard he notes that the former problem ‘rides on the back of another classical problem: that of political obligation. Do citizens have genuine moral obligations just in virtue of law? Does the fact that a legislature has enacted some requirement in itself give citizens a moral as well as a practical reason to obey?’498 Dworkin is willing to assert that there is such a thing as a general moral obligation to obey the law which he further unpacks as a kind of associative obligation. Contra Greenberg, however, he cautiously disassociates the question of political obligation from the question of legal normativity proper. As he remarks, ‘[t]hese two issues—whether the state is morally legitimate, in the sense that it is justified in using force against its citizens, and whether the state’s decisions impose genuine obligations on them—are not identical. No state should 497 By presenting this distinction as being between reasons for enforcement and reasons for action I do not intend to convey the thought that the former are not also, literally speaking, reasons for action. Perhaps a more precise but slightly more verbose formulation of this distinction would feature reasons for institutional action versus reasons for action simpliciter. 498 Law’s Empire, supra note 8, p. 191. 608 enforce all of a citizen’s obligations. But though obligation is not a sufficient condition for coercion, it is close to a necessary one.’499 What enables Dworkin to separate these two questions and associate only the former question of legitimate coercion with the subject matter of legal normativity is the contrast he implies between the facts that provide reasons for enforcement and the facts that provide reasons for conformity. In virtue of their more specific meaning as facts about the instantiation of principles of political morality by obligations or rights, legal facts are facts that purport to guide a state’s adjudicative and executive institutions in realizing, that is, enforcing on demand, the content of rights and duties that best justify both past instances of coercive enforcement and current announcements about the future use of force or the imposition of sanctions. This strong connection in Dworkin’s account between legal facts and reasons of enforcement is explanatorily upstream of his account of how legal facts obtain. As a short reminder we may recall here that in stark opposition to Greenberg’s antipositivist metaphysics Dworkin does not endorse the view that the relation between the actions of legal institutions and legal facts is cognate to the relation between right-making facts and facts about rightness. His view is nonlinear in the sense that the actions of legal institutions which he individuates by reference to their coercive impact trigger the principles of political morality which are embodied by a particular political community. This triggering consists in enabling more 499 Loc. cit. 609 abstract principles to be instantiated by more particular obligations and rights. Now, for Dworkin, a legal fact is precisely a fact about this triggering, namely a fact about the instantiation of principles of political morality by more specific obligations or rights. The nonlinearity of his account is manifested by the fact that this triggering is justified to the extent that the particular obligations and rights that follow from more abstract principles can, in their turn, justify past and, hence, also future instances of coercive enforcement. On this picture, the relations of triggering, instantiation and justification of coercion are trapped in a purportedly virtuous circle of normative interpretation. What matters for our current concern is that, precisely in virtue of their mode of obtaining, legal facts of this kind are facts that are tailored to provide reasons in order, that is, to justify the coercive enforcement of obligations and right on official demand. Becoming aware of this background story allows us to tap deeper into Dworkin’s idiosyncratic treatment of legal reasons for action as a specific kind of reasons for institutional action. The reason I choose to characterize his treatment as idiosyncratic is that he wants to preserve on board a pair of views that are typically taken to be mutually inconsistent, namely, the view that legal facts provide piecemeal, case-to case reasons for action and the view that law achieves bindingness via a general moral obligation to obey the law. He aspires to achieve that by marshalling two different kinds of fact only one of which is strictly legal. On the one hand, he asserts that 610 facts about the instantiation of principles of political morality by obligations or rights provide institutional reasons for enforcement on demand. These are typically legal facts that perform this task. On the other hand, the fact that members of a community of principle have a general moral obligation to obey the collective political decisions of their community provides atomic reasons for action by way of subsumption. This latter fact is not a legal fact but a more abstract, political fact. At this level the morality of political association tracks the content of the law by requiring whatever the law requires at a particular instance.500 500 Granted that the purpose of my exposition is not to challenge Dworkin’s account of political legitimacy I would like to confine my comments to a calculated guess about what could motivate this peculiar combination of views. I believe that Dworkin thinks that one is entitled to preserve both aspects of bindingness so long as she disassociates the concept of authority understood as the normative power to impose duties on others from the theory of what brings legal obligations and rights into existence. Whereas I am sympathetic to the possibility of this disassociation I remain sceptical about its prospect insofar as one is willing to preserve authority as explanatorily relevant for obligations of the associative kind. Dworkin makes this connection when he says that ‘[a] community of principle…can claim the authority of a genuine associative community and can therefore claim moral legitimacy—that its collective decisions are matters of obligation and not bare power—in the name of fraternity’ (Law’s Empire, supra note 8, p. 214). If authority figures in the normative explanation of an obligation to obey the law it must also figure in the normative explanation of what the law is. But this is problematic for the reason that Dworkin does not seem to implicate authority in its sense as a normative power to create duties in his account of the ground of law. The way he refers to authority in this context is by reference to a legitimate power to coerce, but this this hardly the kind of authority he implies in the case of associative obligations. In this latter context he mentions that ‘a political society that accepts integrity as a political virtue thereby becomes a special form of community, special in a way that promotes its moral authority to assume and deploy a monopoly of coercive force’ (ibid, p. 188). 611 To answer the taxonomical question I posed earlier, namely, whether reasons of integrity fall with the quadrant of practice-based reasons, it does not suffice to show that these reasons are institutional in the sense that they are reasons for the performance of institutional actions of official enforcement. As we may recall, practice-based reasons are distinguished from Nexus reasons not in virtue of their content but in virtue of their normative impact, that is, their capacity to condition the evaluation of an agent by way of depiction or by way of constitution. In practice this difference is evidenced by the way we answer the question of whether one is supposed to actually treat a fact a reason for action in order to be eligible for a positive evaluation of her conduct. If the answer is positive, the reasons at hand are of the Nexus sort. If the answer is negative, which means that it suffices that one’s ideal counterpart could treat this fact as a reason for action, the reasons at hand are practice-based reasons. Fortunately, Dworkin is fairly clear on this point as he provides the necessary textual material for concluding that reasons of integrity are indeed practice-based reasons, that is, constitutively impactful. In this regard he remarks that: ‘[t]he responsibilities a true community deploys are special and individualized and display a pervasive mutual concern that fits a plausible conception of equal concern. These are not psychological conditions [emphasis added]. Though a group will rarely meet or long sustain them unless its members by and large actually feel some emotional bond with one 612 another, the conditions do not themselves demand this. The concern they require is an interpretive property of the group’s practices of asserting and acknowledging responsibilities—these must be practices that people with the right level of concern would adopt—not a psychological property of some fixed number of the actual members [emphasis added]. So, contrary to the assumption that seemed to argue against assimilating political to associative obligations, associative communities can be larger and more anonymous than they could be if it were a necessary condition that each member love all others, or even that they know them or know who they are.’501 From the above passage we can safely assume that the evaluative property of displaying equal concern and respect for others can be attributed to both citizens and legal officials on counterfactual grounds. On the one hand, insofar as a citizen’s action could be informed by her recognition that a general obligation to obey the laws of a community of principle is a reason to act as she does in a particular context, this person is constituted by her actual conduct as a person driven by equal concern and respect for her fellow-citizens. On the other hand, a legal official that could treat a fact about what instantiates a (set of) principle(s) of political morality as a reason to enforce a right on demand is also constituted by the performance of her role as a someone who treats members of this community with equal concern and respect. 501 Law’ Empire, p. 201. 613 In the hope that I have managed to settle the taxonomical question, there remains the less perplexing question of how we are to make sense of a hypothetical episode of theoretical disagreement between a proponent of Dworkin’s view and a positivist or antipositivist proponent of the Nexus view. To see how this episode of disagreement could transpire let us suppose that Dworkin himself intervenes in the previous exchange between our, by now familiar, Nexus fans, Gonzo, the Razian positivist, and Froddo, the Greenbergian antipositivist: (a)Gonzo: The fact that L is a reason for A to φ in C is grounded in the fact that A is more likely to conform to reasons that apply to her independently of the actions that brought about L by φ-ing in C. (b)Froddo: The fact that L is a reason to φ in C is grounded in the fact that the actions that brought about L changed the morally relevant circumstances in a way that makes φ-ing in C the right thing to do. What would be Dworkin’s hypothetical reaction to this dispute? Could he, for instance, remark that the fact that L is a reason to enforce the obligation to φ in C is grounded in the fact that φ’s enforcement is consistent with the principles that informed its enforcement in similar past cases? I believe that the reason why this could not be the case is obvious. The dispute would become merely verbal as evidenced by the fact that whereas both Gonzo and Froddo appear to disagree about what grounds the fact that there is a reason to φ in C, Dworkin appears to disagree by offering his grounds for another type of fact, namely, the fact that there is a reason to enforce the 614 obligation to φ in C. As I took the liberty of mentioning many times so far, this is exactly what the two-dimensional model of disagreement I am trying to defend should predict. A Dworkinian interpretivist cannot simply usher into this disagreement without qualifying the content of her objection in second-order terms. This can be achieved if we remodel the same episode of disagreement as an instance of a metanormative dispute about the kind of reasons that law gives. On this alternative picture, Dworkin’s critical reply would be that both Gonzo and Froddo share the fallacious thought that legal facts are normatively relevant in virtue of their providing direct reasons for action and, consequently, their grounding regards the way in which official actions can permissibly change our moral circumstances. He would supplement this response with the claim that reasons of law are institutional reasons and, consequently, the question of grounding that should concern us is not what explains the way in which official action changes what we ought to do but what explains the fact that government officials have the power to force us to do what we ought to do. Dworkin’s hypothetical metanormative objection sheds light on the qualitative difference of grounding explanations that feature the principle of integrity as their main element. It must be evident by now that appeals to inclusive502 integrity serve to answer a normative question that Nexus-type 502 Dworkin introduces this term in his effort to distinguish between the grounding relevance of integrity in the context of the generation of legal rights and obligations and its grounding relevance in the context of how these facts about legal content acquire the force of reasons for enforcement on demand. In this regard he notes that integrity in the latter context is not always sufficient to ground the normative force of legal facts as exceptional 615 theories of legal normativity fail to see as prominent. If my hypothesis about the possibility of metajurisprudential disagreement is sound, I would dare to assert that at least part of what explains this discrepancy is a conflict between different metanormative visions about law. This is not to say that a shift of focus from the way in which government affects our obligations to the responsibilities of government towards us is not marked by a shift in substantive political views. This is more than an apposite assumption. My point rather is that on some occasions our first-order political disagreement should be mediated by a more abstract reflection about the orientation we strive to give to our theories. In the present case, it appears that it is at least possible that the shape that Dworkin’s account of integrity would take circumstances may require the inclusion of considerations of justice and fairness as trumping determinants of the outcome. Dworkin develops this idea by noting that ‘[t]he adjudicative principle that governs our law enforces inclusive integrity: this requires a judge to take account of all the component virtues. He constructs his overall theory of the present law so that it reflects, so far as possible, coherent principles of political fairness, substantive justice, and procedural due process, and reflects these combined in the right relation’ (Law’s Empire, supra note 8, p. 405). Based on this supplementation of integrity with other principles or values Dworkin concludes that ‘[t]he principle of integrity in adjudication, therefore, does not necessarily have the last word about how the coercive power of the state should be used’ (ibid, p. 219). Dworkin invokes the Fugitive Slave Act case to describe an exceptional occasion where what determined what the law was before the American Civil War (namely pure integrity) failed to also give normative force to this law. The best illustration of this exceptional divergence is given by Dworkin in his latest work where he observes that ‘[t]he United States Congress (let us assume) was sufficiently legitimate so that its enactments generally created political obligations. The structuring fairness principles that make law a distinct part of political morality—principles about political authority, precedent, and reliance—gave the slaveholders’ claims more moral force than they would otherwise have had. But their moral claims were nevertheless and undoubtedly undermined by a stronger moral argument of human rights. So the law should not have been enforced’ (Justice for Hedgehogs, supra note 14, p. 411). 616 would not be the same if it turned out that legal reasons should be such that our evaluation qua agents depends on their actual rather than counterfactual treatment as reasons for action. It would beg the question to suppose that this conclusion could be avoided by mere appeal to the principle of integrity. The reason is that the question of whether it matters for our evaluation qua agents if someone is actually responsive to legal reasons, rather than counterfactually appreciative of their force, is explanatorily downstream of the question of whether the government is entitled to enforce our response to legal reasons. The order of these two explanatory tasks serves a conceptual purpose. If we could suppose that our starting question should be about what grounds the entitlement to enforce one’s response to reasons, the question of whether it matters if we actually treat those reasons as reasons is easily discarded as conceptually misguided for the simple reason that if all that matters is whether the enforcement of our response to reasons is permissible it becomes hardly obvious why we should care if we actually treat some facts as reasons instead of whether we could treat those same facts as reasons even if we don’t actually treat them as such either because we are motivated by other considerations or because we decide to break the law. Finally, we should notice that by adhering to the suggested order of explanation we need not be led to this same exclusionary result. If we agreed that it matters whether we actually treat legal facts as reasons for action, we would not count as being conceptually confused if we proceeded to ask the further question of when our response 617 to legal reasons may be enforced. For instance, one may argue that a kind of principled enforcement like the one Dworkin defends is permissible because, for some legal reasons independent of the reasons for enforcement, official coercion actually facilitates us to conform because we can become aware of the relevance of these independent legal reasons.503 The second instance of metanormative divergence from the Nexus is pithily represented by Scott Shapiro’s planning account of legal normativity. In what follows I will be referring to his account as a thesis about the inner rationality of law, a term which Shapiro describes as the body of rational requirements applicable in a given legal system.504 As I am about to argue, 503 This is an adapted rendition of A.J. Julius’ Independence Principle of interpersonal coercion. According to this principle coercion between two persons is wrongful if A does y, intends by y’ing to bring it about that B does x, and fails to believe with warrant that, for some reasons R independent of her, her y’ing facilitates B’s [doing x because B takes R as giving her sufficient reason to x]. See his ‘The Possibility of Exchange’, in Politics, Philosophy & Economics, (2013) 12 (4): 361-74, at 365. 504 Shapiro attributes the ownership of this term to Michael Bratman who in turn has adapted Lon Fuller’s famous phrase “the inner morality of law”. In fact, Bratman develops his argument about the inner rationality of law partly with a view to interpreting Shapiro’s original view on planning normativity. Bratman invokes Shapiro’s Moral Aim Thesis which, as Bratman notes, provides ‘a model of a kind of sociality that helps solves these characteristic [moral] problems and thereby transmits, in means-end fashion, the normative force of general reasons we have to solve those problems to the specific legal actions mandated by the relevant planning structures’ (M. Bratman, Reflections on Law, Normativity and Plans’ in Stefano Bertea and George Pavlakos (eds.), New Essays on the Normativity of Law, Oxford: Hart Publishing, 2011, pp. 73-85, at 81). Bratman interprets Shapiro as attributing a transmissive function to plan requirements enacted by law in the sense that the fact that a legal plan mandates a course of action enables pre-legal normative reasons to solve moral problems to transmit their normative force to reasons for acting on the means that legal plans make salient. Bratman describes this process in the following way: ‘there are, independently of law, reasons to solve the cited problems…Law, 618 what strongly recommends the positioning of his theory within the quadrant occupied by requirements of rationality broadly construed is the limiting or constraining rather than robustly response-guiding character of requirements emanating from the master plan and the body of sub-plans comprising the content of a legal system. Shapiro is willing to acknowledge that his account of legal normativity is rather thin claiming that ‘[t]he inner rationality of law, of course, is a limited set of constraints [emphasis added] because the rational norms of planning only apply to those who accept plans.’505 Moreover, his way of associating the normativity of law with the normativity of rational constraints is indicative of the way he implements the metric approach in the sense that he presents the rational normativity of “legal” plans as a token of weaker normativity in comparison to the reason-giving normativity of moral facts. In his words, ‘the normativity of the master plan of a legal system is of a very limited sort [emphasis added]. While legal officials are rationally required to conform to their shared plan, it is also true that those who do not accept the law are not similarly bound we are now supposing, is a means to solving those problems. Law requires certain forms of conduct. So the reasons for solving those problems are transmitted by law to reasons for that conduct’ (ibid, p. 82). Whereas I do find Bratman’s interpretation plausible, I tend to disagree with the role it assigns to legal facts or facts about plans as triggers or enablers of normative transmission. The reason is that, on the planning theory of law, law is not just a mediating device between moral problems independently defined and their solutions. Law emerges before the individuation of problems on independent grounds takes place by representing a system’s master plan as a morally legitimate way of tackling with the problems associated with the circumstances of legality. In that sense law is also implicated in the identification of moral problems by way of representing its master plan as a morally proper blueprint for solving a particular set of problems represented as morally relevant. 505 Legality, supra note 7, p. 183. 619 [emphasis added]. Furthermore, the master plan of a legal system may be morally illegitimate and hence not capable of imposing a moral obligation on anyone to obey.’506 The model Shapiro employs to describe the normative function of the practice of legal officials strongly resembles the type of normative pressure involved in ordinary instrumental reasoning. Legal officials adopt a master plan as a very general means of rectifying the moral deficiencies associated with the circumstances of legality.507 Law appears as the mechanism that can determine which specific goals and values the legal system ought to pursue and also settle the questions that arise with regard to the achievement of those goals and the realization of those values. In this regard, Shapiro sees the emergence of law as an institutional response to what he refers to as the ‘complexity and contentiousness of communal life’.508 Tellingly, as Shapiro remarks, the type of solutions that law offers are equally complex, contentious and arbitrary which is why the actions of legal institutions must be capable of effecting a certain degree of normative 506 Shapiro defines these circumstances as follows: ‘The circumstances of legality obtain whenever a community has numerous and serious moral problems whose solutions are complex, contentious, or arbitrary. In such instances, the benefi ts of planning will be great, but so will the costs and risks associated with nonlegal forms of ordering behavior, such as improvisation, spontaneous ordering, private agreements, communal consensus, or personalized hierarchies. Indeed, the costs and risks of nonlegal planning may be so large as to be prohibitive. Communities who face such circumstances, therefore, have compelling reasons to reduce these associated costs and risks. And in order to do so, they will need the sophisticated technologies of social planning that only legal institutions provide’ (ibid, p. 170). 507 Ibid, p. 213. 508 Ibid, p. 309. 620 closure by way of enacting norms. For that reason Shapiro partly individuates the activity of legal officials by reference to its capacity to settle questions about how to act noting that ‘[l]egal institutions are not in the business of either offering advice or making requests. They do not present their rules as one more factor that subjects are supposed to consider when deciding what they should do. Rather, their task is to settle normative matters in their favor and claim the right to demand compliance.’509 That being said, there lingers an ambiguity with regard to the relation between settling or action-guidance provided by plans and the normativity of legal planning qua activity. On the one hand, Shapiro is willing to accept that there is clear evidence of normative pressure with regard to the activity of legal planning. In particular, he associates this normativity with the normativity of facts about the adoption of plans. According to Shapiro, the latter type of planning normativity piggybacks on the obtaining of two attitudinal facts: (a) the fact that the legal officials believe that a given sub-plan is a means of serving the purposes set out in the legal system’s master plan and (b) the fact that legal officials represent the system’s master plan as a morally legitimate solution for what has been identified as morally problematic or contentious in a given community. Consequently, the normative pattern that plays out bifurcates in two consecutive theses: 509 Ibid, pp. 201-2. 621 Authorization Thesis: The fact that the legal officials of S represent the Master Plan M of S as morally legitimate response to the circumstances of legality gives rise to a rational requirement to [intend to plan for others, if they accept M] Inner Rationality of Law Thesis : The fact that the legal officials of S believe that P is a means to implement the Master Plan M of S gives rise to a rational requirement to [intend to fulfil, monitor and readjust P if the legal officials of S represent M as morally legitimate] What is interesting about these two theses is that the facts that appear as normatively relevant—in the sense that they give rise to some rational constraints—are not descriptive facts about the existence of plans (“legal” facts) but attitudinal facts about the mental states of a group of legal officials. This is not paradoxical at least if we pay more attention to Shapiro’s recurrent distinction between the two components of the ability to plan for others. Shapiro notes that ‘while the authorization to plan for others [emphasis added] merely depends on the mental states of legal officials, the ability to plan depends on the mental states of ordinary citizens as well.’510 At the same time, it must be possible for a legal process of planning to instill a disposition in citizens to conform to the requirements 510 Ibid, p. fn 20, p. 421. Shapiro codifies the same point as follows: ‘the Planning Theory claims that a body has legal authority in a par tic u lar legal system when two conditions are met: (1) the system’s master plan authorizes that body to plan for others, and (2) the members of the community normally heed all those who are so authorized. Legal authority will be possible, therefore, just in case it is possible for both of these conditions to obtain’ (ibid, p. 180). 622 emanating from this process. To this effect, Shapiro notes, ‘[l]egal authorities have the ability to plan for others…only if they are able to motivate their subjects to obey under normal conditions.’511 This can either be achieved by way of voluntary compliance on the part of those citizens who consider the relevant legal activity as morally legitimate or by way of coercive enforcement for members of the community that can only be prudentially motivated to comply. In the light of this distinction between the normative (authorization) and the dispositive aspect of legal activity it turns out that on the planning theory of law legal normativity primarily concerns a certain aspect of the activity of legal officials rather than the entirety of what they do or the behavior of citizens. This is not to say that citizens cannot also adopt an attitude of approval towards the master plan of a legal system as well as the plans for its implementation. If they are committed for whichever reason we could also say that they are subject to the same rational requirements of consistency that bind legal officials. But their commitment is totally contingent as opposed to the necessity of a system’s representation by legal officials as morally legitimate. In that sense, the attitudes of ordinary citizens are not a constitutive element of the normative aspect of legal activity even though they remain a very important aspect of the dispositive aspect of legal planning. 511 Ibid, p. 179. 623 With these clarifications in place we may tap into the details of the two theses I presented above. The first normative thesis makes a general claim about what type of normative requirement flows from another metaphysical thesis which Shapiro calls the ‘Moral Aim Thesis’. According to the latter thesis, ‘the fundamental aim of legal activity is to remedy the moral deficiencies of the circumstances of legality’.512 Shapiro takes law to be a formidable and necessary supplement to other less sophisticated mechanisms of social coordination such as custom, tradition persuasion, peer pressure, consensus and promise. Shapiro is very careful to distinguish between the representation of legal activity’s aim as moral and the attribution of a normative function to law as such. This is crucial for his broader task of vindicating exclusive positivism as the correct theory of law precisely because it must remain conceptually clear that the degree to which a legal system actually succeeds in improving the moral situation has no effect on the individuation of the legal system as legal. Shapiro makes this point when he claims that ‘to say that the law’s mission is to address the moral defects of alternative forms of social ordering is not to claim that legal systems always succeed in their mission…What makes the law the law is that it has a moral aim, not that it satisfies that aim.’513 He then tries to disassociate the possession of a moral aim by law from its functional attachment to it by noting that to say that the law has a moral aim is nothing more than to say that ‘high-ranking officials represent[emphasis 512 Ibid, p. 213. 513 Ibid, p. 213-4. 624 added] the practice as having a moral aim or aims. Their avowals need not be sincere, but they must be made.’514 On this approach, the Authorization Thesis just states the normative consequences of the Moral Aim Thesis. What it says is that facts about the representation of law or, more precisely, facts about the representation of the master plan of a legal system as serving a moral aim are normatively relevant in virtue of their giving rise to a rational requirement of instrumental consistency. This rational requirement should be read as taking wide scope over a conditional featuring the acceptance of the system’s master plan as its content. In this way we can say that the rational requirement to plan for others can be satisfied in two normatively asymmetrical ways. One way is for the group of high-ranking legal officials to abandon their commitment to representing this particular master plan as morally legitimate. The other way is for the same group to engage in the activity of producing plans for law-subjects. To see why I have chosen to categorize this requirement as falling within the quadrant of general 514 Ibid, p. 217. In this regard, if we want to be charitable about the plausibility of this distinction, the only avenue we can choose is than one I have also indicated with regard to the treatment of the property of legality simpliciter. In the first part of this thesis I developed an argument about what the best understanding of Shapiro’s talk of legality would be noting that on the most charitable reading legality is not a real property but a second-order predicate that denotes the possession by planning organizations and plans of other real properties. In the same spirit, we could say that law does not really have the property of having a moral aim. On this charitable reading, to say that law has a moral aim is to say that law has the property of being represented as having a moral aim by high- ranking officials. 625 rational requirements we need only observe that the way in which facts about the moral representation of a system’s master plan become normatively salient is by constraining rather than guiding our response. This is clearly evidenced by the fact that the only state of affairs that this type of requirement prohibits is the simultaneous preservation of a moral representation of the master plan and an akratic reaction towards the activity of planning for others. Beyond this negative prohibition nothing about this requirement per se can provide decisive guidance as to how to operate a legal system. Moving to the second thesis it is fairly obvious that its function is ancillary to the foundational function of the rational requirement to plan for others. All it says is that there must be a rational pattern in realizing the legal activity of planning for others. In this regard it appears that the inner rationality of law consists in a set of rational requirements whose object is again a conditional rather than a particular response or course of action. This is a typical instance of a law-specific wide-scope principle of instrumental rationality which by itself fails to provide robust guidance as to how to proceed all things considered. The reason is that the above requirement can be satisfied in at least two ways that mark a distinct normative asymmetry. More precisely, necessarily a legal official can satisfy this requirement either by intending to fulfil the plan or by ceasing to sincerely or pretentiously represent the system’s master plan as morally legitimate. From the point of view of planning rationality simpliciter, the 626 only normative constraint that obtains is that a legal official is necessary irrational if she persists in combining the following pair of attitudes: represent the system’s master plan as morally legitimate and fail to intend to fulfil the plan that facilitates the master plan’s implementation. The upshot of these interpretive remarks is that the normative aspect of legal activity is response-constraining rather than response-guiding. This is not an outcome that merits being regretted mainly because it does not touch upon the dispositive aspect of legal activity which Shapiro emphatically associates with the guidance of both legal planners and ordinary citizens. This is another way to say that on Shapiro’s theory of law the role reserved for normativity is limited in comparison to the space reserved for considerations of efficacy and trust between state officials. That being said, it is worth noting that Shapiro dedicates a considerable amount of space for detailing the way in which the legal activity of planning can also dispose the members of a community to heed to plans. Shapiro’s recognition of the guiding role of plans is expressed in a variety of argumentative modes. The most characteristic one regards a set of recurring functional claims about plans like when, for instance, he remarks that ‘[t]here would be no point in making plans if we did not use them to guide our conduct.’515 Other claims to the same effect are more metaphysical in nature. This is evident in Shapiro’s association between 515 Ibid, p. 126. In the same spirit, Shapiro notes that ‘shared plans are supposed to guide and coordinate behavior by resolving doubts and disagreements about how to act’ (ibid, p. 177). 627 plans qua abstract propositional entities with norms noting that the former are like the latter in the sense that they function ‘as a guide for conduct and a standard for evaluation. In keeping with this characterization, plans too are norms. They are guides for conduct, insofar as their function is to pick out courses of action that are required, permitted, or authorized under certain circumstances.’516 What matters for the purpose of guiding citizens and legal officials alike to adhere to their part in the “game of law” is the economy of motives. This requires a wise balance between internal and external motives with an emphasis on enabling or encouraging citizens to be motivated to comply for reasons that are not merely prudential. As Shapiro notes, ‘[w]hen members of the community consider legal authorities to be morally legitimate, encouraging compliant behavior will be relatively straightforward. By designating a standard as the standard to be used to guide and evaluate conduct, their subjects will take themselves to have reasons to defer and, in the normal course, will obey.’517 516 Ibid, p. 127. Expanding on this metaphysical statement Shapiro explains that ‘[w]hile all plans are norms, not all norms are plans. The laws of logic and the principles of morality, for example, are norms but they are not usually considered plans. Plans are “positive” entities— they are created via adoption and sustained through acceptance. By contrast, logical and moral norms exist simply by virtue of their ultimate validity. They are not created by anyone. Plans are also typically partial norms that are supposed to be fleshed out over time, whereas it makes no sense to talk about incrementally developing the laws of logic or morality. Plans are also purposive entities. They are norms that are not only created, but are created to be norms’ (ibid, p. 128). 517 Ibid, p. 180. In one sense Shapiro seems to side with Mark Greenberg’s position that the legally proper way of changing the moral situation is by providing citizens with reasons that are not merely prudential ones. Despite appearances, however, this resemblance is only superficial in the sense that for Shapiro the desirability of enabling citizens to be 628 In the hope that I have managed to delineate the limited scope of Shapiro’s claim about the normativity of law it is reasonable to ask how this theoretical claim can be juxtaposed with more robust claims. Again the issue at stake has to do with the intelligibility of jurisprudential disputes between theories of legal normativity whose metanormative premises are radically different. In what follows I will briefly pause the progress of my argument in order to measure the highest degree of affinity of Shapiro’s theory with opponent theories of legal normativity. At a further step, I will try to show how Shapiro’s Moral Aim Thesis can figure intelligibly in disputes about what grounds normative facts about the normative relevance of legal facts. As already noted, the idea I intend to put on the table is that the best terms in which a plan positivist like Shapiro can participate in this kind of dispute are metanormative rather than directly political. Before coming up with a proposal I would like to explain why, in a sense, Shapiro’s account is closer to the Nexus theories of Raz and Greenberg than to Dworkin’s theory of reasons of integrity. What both Shapiro’s appeal to the inner rationality of law and the two Nexus accounts share is their understanding of the normative impact of law as depictive. Recall that normative impact is one of the two dimensions of normative relevance I have discussed about at the beginning of this part. To say that a fact’s normative impact is depictive and not constitutive is to say that what motivated by the law is a function of a legal system’s efficacy, whereas for Greenberg the same value is a function of a legal system’s attaining its essential property of achieving bindingness. 629 matters for an agent’s evaluation is whether she actually (instead of counterfactually) treats the relevant fact as reason-giving, or equivalently, the fact that serves as an explanation of one’s actual conduct is also the fact serves a standard of evaluation. In the relevant position, I explained why both Raz and Greenberg would most probably favor this approach. The idea was that on both accounts legal facts are viewed as indispensable items of one’s practical deliberation about what to do. By indispensable I mean that their capacity to serve as standards for evaluating instances of law- conforming or law-breaking behavior is tied to whether they also figure in what explains one’s actual conduct. It is precisely in this respect that Shapiro’s non-response-guiding account and the two Nexus variants display their kinship. The depictive impact of carrying out plans is strongly evident in Shapiro’s remarks about the function of plans as standards of evaluation. He notes that, ‘Regardless of who applies the plan, rationality requires that the plan adopter make sure that someone does. To adopt a plan and not use it, or use it incorrectly, is irrational. In other words, a planner is subject to criticism when she forgets that she adopted a certain plan, cannot figure out the content of the plan, does not bother to find out what the world is like, fails to use her beliefs to determine the application of the plan, uses these beliefs incorrectly, or simply does not carry out the plan that she believes applies.’518 518 Ibid, p. 127. 630 What Shapiro most probably means about the correct use of plans is what philosophers who want to affirm the normativity of wide-scope requirements of rationality refer to as the correct way of obviating the normative asymmetry between different ways of satisfying a wide-scope requirement. To illustrate this case we may take as an example the case of enkratic requirements. A typical instance of an enkratic requirement is the requirement to intend to act on one’s normative beliefs. In more formal language this is usually described in conditional terms as in the following statement: one is rationally required to (intend to φ, if she believe that she ought to φ). Given the wide-scope character of this requirement there are two ways in which someone may respond to it. One way is to acquire the intention to φ and an alternative way is to revise one’s belief that she ought to φ. As we have already seen in previous examples, these two ways are not normatively in par. For instance, it may well be the case that there is overwhelming evidence that one’s normative belief is correct. In that case it would be normatively suboptimal to quit one’s belief instead of acquire the relevant intention. This kind of behavior would amount to an empty exercise in rationalization. On the other hand, it might occur that the content of one’s normative belief is morally odious. In this case it would be normatively infelicitous to intend to act on this belief instead of revise it in the light of reasons that demonstrate the wrongness of one’s purported action. The first step in solving this asymmetry problem is to take on board the idea that the fact that can normatively explain one’s actual response need 631 not be identical with the fact that serves to constrain one’s behavior. This is precisely the divergence we noticed earlier with regard to the way in which attitudinal facts display their normative salience. In this regard, whereas the fact that serves to constrain one’s rational response is the fact that one believe that she ought to φ, the fact that serves to explain whether one’s actual response is felicitous is a fact about the overall reasons that, depending on the context, either favor one’s choosing to acquire an intention to φ or recommend the revision of one’s normative belief. John Broome, for instance, refers to supplementary reasons519 against failing to intend to φ as basing prohibitions and describes this kind of basing as inferential. As he notes, ‘Rationality requires of you that you do not [emphasis added] not believe you ought to F on the basis of your not intending to F…This requirement is separate from Enkrasia; it rules out one particular way of satisfying Enkrasia. It is an example of a ‘basing prohibition of rationality’… Besides rational requirements such as Enkrasia, which are synchronic and require particular combinations of attitudes to obtain or not obtain at any time, there are also rational requirements that require some particular attitude, or lack of an attitude, not to be based on other particular attitudes or lacks. 519 To be more precise, Broome avoids to equate these asymmetric, response-guiding basing requirements with reasons but this is more a result of his idiosyncratic treatment of ‘oughts’ as more basic than ‘reasons’. Nothing of crucial importance depends on whether we adhere to Broome’s terminology or not. 632 They are asymmetric, and they explain the asymmetry we have been exploring.’520 Consequently, Broome proceeds to distinguish between the inferential role of reasons against satisfying the enkratic requirement by way of dropping one’s normative belief from the evidential reasons that count against satisfying the enkratic requirement by acquiring an intention to act on one’s normative belief. Whereas the former reasons are, so to speak, attitude- dependent, the latter are attitude-independent in the sense that the moral wrongness of an action is a fact that holds independently of our beliefs. In a slightly different sense, Jonathan Way calls facts of both types (inferential and evidential) ‘basing principles’ noting that that are necessary supplements to the constraining function of wide-scope requirements. In his words, ‘[T]he Wide-Scope view allows that rationality may involve more than mere compliance with a set of Wide-Scope requirements along the lines of those above. I will suggest that compliance with such requirements is at most a part of what it is to be rational. Being rational also involves forming, holding and revising attitudes for appropriate reasons. So Wide-Scope requirements must be supplemented with principles giving conditions under which 520 J. Broome, Rationalty Through Reasoning, p. 132. Broome complements this claim with the remark that ‘’[a] basing prohibition does not prohibit attitudes themselves. Without any irrationality, you might not believe you ought to F and at the same time not intend to F. Rationality prohibits you only from having the first of these attitudes on the basis of the second’ (ibid, p. 170). 633 attitudes are appropriately formed, held and revised. I will call such principles basing principles.’521 At the same time Way’s argument about the complementary role of basing principles brings us closer to my initial remark about the way in which facts about these basing principles, or as I would prefer to put it, facts about overall reasons figure in the evaluation of our actual responses to wide- scope requirements. As previously noted, the idea is that the nature of the normativity of wide-scope requirements makes them amenable to supplementation by “narrow-scope” principles or reasons. In the present case, provided that facts about our normative beliefs cannot also be the facts the figure in the normative explanation or rationalization of our actual behavior it remains an open question how agents are supposed to be evaluatively reflected in their actual responses. The idea is that in the case of rationality we get the following pattern: on the one hand, there is a “benign”, so to speak, divergence between the facts that constrain our attitudes and the facts that explain our particular way of satisfying this constraint and on the other hand there is a convergence between the facts that explain our actual responses as normatively felicitous and the facts that must be actually treated as reasons for a particular response in order for us to qualify as rational! If we may recall, this is precisely the pattern that I invoked in describing the normative “coordinates” of the depictive- 521 J. Way, ‘The Symmetry of Rational Requirements’, in Philosophical Studies (2011) 155:227–239, p. 230. 634 constraining quadrant.522 In that sense, basing is a notion that purports to codify the way in which one’s actual behavior is subject to rational evaluation. If one’s actual way of responding to a wide-scope requirement is properly based, it follows that she can be evaluated as rational precisely because she actually treated a basing principle as a reason for responding in the way she did. Returning back to our main case we are in a better position to understand the affinity of Shapiro’s account with the depictive impact of Nexus legal reasons. Whereas Shapiro’s planning account of legal normativity is response-constraining rather than response-guiding in the sense that Nexus theories are, both types of theory condition the evaluation of legal actors on their actual treatment of reasons in the ordinary sense. In other words, both theories treat as problematic any divergence between the facts that serve as standards for evaluating agents and the facts that figure in the explanation of their actions. This is clearly evidenced by Shapiro’s comment that ‘an official who accepts her position within an authority structure will be rationally criticizable if she disobeys her superiors, fails to flesh out their orders so that she may take the means necessary to satisfy their demands, 522 Jonathan Way describes the same point in a slightly elliptical fashion when he remarks that ‘there is a connection between rationality and the reasons for which agents hold attitudes [emphasis added]. These reasons are simply the type of thing that can figure in a certain type of explanation: ‘Lindsay intends to leave because the game is starting’, ‘Daniel believes he will pass because he believes he has a copy of the test’, and so on. It is hard to see how it could be denied that reasons, in this sense, are relevant to rationality.’ ( Loc. cit.). 635 adopts plans that are inconsistent with these orders, or reconsiders them without a compelling reason to do so [emphasis added].’523 It is precisely those compelling reasons that a rational planner must actually treat as bearing upon her decision to satisfy a wide-scope planning requirement in one way or another if she is to count as rational.524 What is crucially important is that those compelling reasons are not part of the body of wide- scope requirements that compose the content of a legal system! They are extra-legal considerations whose normative force is not inherited by planning requirements of the sort that Shapiro describes with respect to the authorization to plan for others and the rational implementation of these plans. Nevertheless, they reserve a supplementary role exactly in the sense that Way and, perhaps also, Broome develop their respective notions of basing.525 523 Legality, supra note 7, p. 183. 524 Shapiro confirms the relevance of these normative reasons as basing principles that ultimately determine the proper way of satisfying a planning requirement when he claims that ‘when judges disagree with one another about the relevance of some moral fact to the interpretation of a legal text, they cannot be disagreeing about the grounds of law. To understand the nature of these disagreements on the Planning Theory, we must recall an important feature of plans…When I plan to go to the movies to night, I am not planning to go come what may. I realize that there are compelling reasons that might arise that would force me to reconsider my decision, for example, I suddenly get sick, the movie theater increases the price of admission tenfold, my house catches fire, and so on. “Unless compelling reasons arise,” therefore, is an implicit codicil that typically attaches to our plans and conditions their applicability.’ (Legality, supra note 7, p. 303). It bears emphasizing that these compelling reasons are relevant for the normative guidance of plans not for their existence or content. 525 Way is explicit about his distinction between the normativity of wide-scope requirements and the normativity of basing principles noting that ‘Wide-Scope requirements are not 636 In what remains I will try to capitalize on my last remark that basing reasons are not constitutive of the normativity of wide-scope requirements in order to explore the way in which a wide-scope account like Shapiro’s can figure in disagreements about the grounds of legal normativity. A natural explanation of my last remark that basing reasons are not part of an account of wide-scope normativity is that these basing reasons are not part of the grounds of normative facts about the obtaining of wide-scope requirements. This is precisely the sense in which defenders of the wide- scope approach try to extricate the normativity of rational requirements of coherence and consistency from the normativity of practical reasons. If we may recall, a type of argument I presented earlier with regard to the grounding of wide-scope requirements is constitutive. For instance, Michael Bratman has explored the possibility of grounding the normativity of wide- scope requirements of rationality in the fact that their obtaining is constitutive of the normative possibility of an intrinsically valuable type of agency which in the relevant case is, according to Bratman, self- governance. On Bratman’s account, reasons of self-governance are directly grounded in the intrinsic value of this type of agency rather than in further reasons. This argumentative strategy enables Bratman to guard himself against the objection that the value of self-governance is transparent to the directly concerned with basing, and so need to be supplemented with independent basing principles. But then we can expect those principles to explain this type of asymmetry.’ (in ‘The Symmetry of Rational Requirements’, supra note 39, p. 231). 637 value of being responsive to reasons in general. That being said, I do not intend to delve into this controversy mainly because its settlement could only provide analogical support to Shapiro’s view. What is important to keep from this controversy, however, is the idea that if someone chooses to defend a wide-scope account of normativity it is advisable that she fortifies her theory against the transparency objection just described. Returning to Shapiro, there are grounds to believe both that he would choose to defend a wide-scope account of legal normativity and endorse a constitutive argument against the transparency objection. For the first belief I believe that I have already adduced sufficient evidence in its support. For the second belief I shall argue that Shapiro provides a preliminary account of this sort in his defense of the Moral Aim Thesis. First, he seems to be aware of the transparency objection in the technical sense I have deployed it here when he addresses an objection of triviality. More precisely, he refers to the worry a positivist could express with regard to the impossibility of attributing a moral aim to law that is simultaneously universal and nontrivial. As he describes it, some might argue that ‘if we impute an end that is plausibly universal, such as coordinating social activity or guiding conduct, we end up with an empty truism. Of course, the law does those things, but so do games, religion, etiquette, and so on.’526 This worry can be easily re-described as being about the transparency of legal requirements to the requirements emanating from the activity of other 526 Legality, supra note 7, p. 214. 638 systems of value. In response to this worry Shapiro’s defense is characteristically constitutive. He remarks, ‘The Moral Aim Thesis, however, posits an end that is neither parochial nor empty. It is not parochial because it does not claim that the law is supposed to pursue any substantive end. It is agnostic, in other words, about which particular moral problems and opportunities the law should address. The law, we said, is a universal means, adapted to solve any kind of moral problem. But the aim the Planning Theory attributes to the law is not empty either, for it specifies one that most things do not pursue, namely, the rectification of the moral defects associated with the circumstances of legality. Any normative system coordinates social activity and guides action. But only a legal system is supposed to address those problems that less sophisticated methods of coordinating social activity and guiding action are unable to resolve.’527 Without coming across as transgressing the limits of a charitable understanding we could reparse this claim as the claim that the requirement to plans for others and the requirements to act consistently in one’s implementation of a legal system’s master plan are important because they are constitutive of the normative possibility of an intrinsically valuable type of social coordination, namely, the one that serves to rectify the moral deficiencies associated with the circumstances of legality. This reparsing can serve as a defense against the transparency objection in the sense that 527 Loc. cit. 639 it shows that there is distinct moral value in the fact that a system represents itself as serving a moral purpose irrespective of whether and how it chooses to produce morally good outcomes.528 As thin as it may be this is an interpretation of Shapiro’s invocation of the Moral Aim Thesis that is minimal enough to prevent his positivist project from becoming 528 In a critical note on Legality Arthur Ripstein expresses his doubts about the possibility of talking about the moral aim of law whilst associating its existence with the representations of legal officials. His suggestion is ‘to resist the idea that law is an all-purpose tool for pursuing whatever planners think of as a moral aim in favour of the idea that it is the institutional solution to the problem of authority.’ (in A. Ripstein, ‘Self-certification and the Moral Aims of the Law’ in Canadian Journal of Law and Jurisprudence (2012) 25 (1): 201- 17, at 208). Furthermore, Ripstein believes that his identification of law as solution to a moral problem about authority ‘makes room for the possibility that questions about authority will be answered in morally odious ways, and that morally odious purposes will be pursued by putting people in charge of things and of other people. That is because it is possible to solve this moral problem-to genuinely solve it-in immoral ways. But it is it not merely planning to pursue what someone thinks is a moral aim that does the work here. For one thing, what the planner happens to think is not fundamental. Further, pursuing moral aims through planning does not make for a legal system unless officials are involved in the right way.’ First off, I find it difficult to see how a moral problem can be genuinely solved in an immoral way. Unless we further unpack this claim into the proposition that the moral problem about authority exhibits a wide-scope structure similar to that of requirement of rationality such that there will be ways of genuinely satisfying this requirement in ways that are normatively suboptimal. Still I find it difficult to understand how Ripstein could regiment his point about authority in wide-scope terms. But most importantly, I would dare to note that Ripstein seems to beg the question in a metaphysical sense. More precisely, he not only claims that what unifies the multitude of moral problems that Shapiro associates with the circumstances of legality is a problem about relations of authority between persons but also supposes that the solution to this moral problem about authority is another type of authority, namely, legal authority understood as the official power to constitute roles and positions of interpersonal authority. The problem with this argument is not its content as such which is perfectly defensible but its force against Shapiro’s claim that legal authority just is the authority of norms of instrumental rationality which by its nature can be manifested only insofar as legal officials represent their plans as 640 vulnerable to the objection that it flirts with collapsing into a covert natural law project. At the same time, of course, it is an interpretation that Shapiro himself makes evidentially salient when he remarks that: ‘The kingdom is a kingdom because the king and his court represent it as having a moral mission. Members of the criminal syndicates we have been considering, by contrast, do not portray their threats as creating obligations and right for their victims. They drop the conceit that they are trying to solve the problems associated with the circumstances of legality—in fact, they realize that they are the problems of the circumstances of legality. It is that recognition, and their lack of shame about it, that make them mere criminals and not legal officials.’529 The final step in this quest for a common ground of disagreement must feature Shapiro’s planning account of normativity in some sort of adversarial encounter with views hailing from different metanormative quadrants. To this effect we may bring again the hypothetical exchange between Gonzo, the Razian positivist, and Froddo, the Greenbergian antipositivist. The reason for the recurring appearance of this example is that it presents an instance of intelligible first-order disagreement about the grounds of the reasons for action provided by the law. Against this moral solutions. The former claim is a claim about the authority to constitute authority, whereas the latter claim is a claim about the authority to plan for others. From this perspective adjudicating their opposition can be premised either on authority-independent reasons or on challenging an unpronounced premise that both views share. 529 Ibid, p. 217. 641 background it becomes more interesting to see how this episode of disagreement can be affected by the participation of an interlocutor who rejects from the very beginning the possibility that law itself is a source of reasons for action. This is precisely the case of a hypothetical interlocutor who happens to be a plan positivist. To refresh our recollection of this exchange I shall repeat it for one last time: (a)Gonzo: The fact that L is a reason for A to φ in C is grounded in the fact that A is more likely to conform to reasons that apply to her independently of the actions that brought about L by φ-ing in C. (b)Froddo: The fact that L is a reason to φ in C is grounded in the fact that the actions that brought about L changed the morally relevant circumstances in a way that makes φ-ing in C the right thing to do. How could a plan positivist interject in this dispute? She certainly cannot flatly proceed to offer her own grounds associated with the value of representing a system’s master plan as morally legitimate precisely because these grounds cannot be offered as explanations of legal reason-giving! For a plan positivist the only relevant normative facts that call for grounding are facts about one’s authorization to plans for others as well as facts about implementing the master plan in a consistent way. As a result the only plausible route available to a plan positivist directs her to a higher level of abstraction. What our hypothetical interjector could say in reaction to this exchange is that they pack too much content into the concept of legal normativity in the sense that they try to account for law’s action-guiding 642 function in normative terms whereas this task can be fully accounted for in dispositive terms. In other words, a plan positivist could object that the only strictly normative question about law that calls for grounding is about the constraints it imposes on the attitudes of legal planners and not about the all things considered justification of their way of satisfying these constraints. The latter task, the plan positivist would retort, is about the efficacy of law, not about the normativity of law. On this picture the participation of the plan positivist in the dispute between a Nexus positivist and a Nexus antipositivist turns the latter first- order dispute into a second-order one. The object of disagreement is not directly about what grounds reason-giving facts about law but rather about the type of normative facts about law that should be considered as amenable to grounding. Whereas both Gonzo and Froddo believe that the normativity of law is about the normative capacity of legal activity to guide people’s actions, the plan positivist believes that the normativity of law is about the normative capacity of our representation of plans as morally legitimate to authorize and constrain a range of planning activities.530 530 A similar type of objection on the part of a plan positivist could also be levelled against Dworkin’s metanormative view. For instance, Shapiro could press against Dworkin’s reasons-based model of state coercion by arguing that precisely because coercive enforcement is an aspect of the action-guiding function of law, it is not part of the normative aspect of legal activity but rather a part of its dispositive aspect. The main metanormative objection remains the same, namely, that legal normativity should be distinguished from law’s efficacy. 643 CHAPTER V In Search for Another Quadrant If I were invited to pinpoint a pattern of argumentation that runs across all four exemplary theories of legal normativity is not their choice of quadrants but the metric nature of their approach. In other words, all four theories seem to struggle between two challenges, one represented by the association of normative robustness with reasons for action and another one represented by the perennial concern that the facticity of law is such that it can only trigger but not give rise to normative requirements. The pressure to address the first challenge is evidenced by the way in which all theories proceed to qualify their statements in terms of how close they get to emulate the normativity of non-legal reason-giving facts. In the case of Nexus theories like Raz’s positivist and Greenberg’s antipositivist variant 644 this qualification is expressed in functional terms. The activity of legal institutions is shown as being capable of affecting our relation to reasons either because it mediates between those reasons and us (Raz) or because it changes the content of those reasons by changing the morally relevant circumstances. In the case of practice-based theories like Dworkin’s account of the force of law this qualification is expressed in constitutive terms. The activity of legal institutions is capable of affecting our relation to reasons by way of constituting a new relation between us and officeholders in a given political community. Last but not least, the rationalist model defended by Shapiro expresses the same qualification in reductive terms. The activity of legal institutions is not presented as being capable of affecting our relation to reasons but as being capable of affecting our relation to the representation of facts as reasons. The pressure to address the second challenge is, in turn, evidenced by the way in which all four theories try to avoid a trivialization of legal normativity to an enabling condition of the normativity of morality or prudence. Both positivist and antipositivist variants of the Nexus model seek to overcome this challenge by treating legal reasons as morally relevant either in terms of their capacity to replace antecedent reasons with preemptive reasons or in terms of their capacity to make more determinate antecedent reasons or bring new moral reasons into existence (Greenberg). Dworkin’s account of the force of law is supposed to address the same challenge by treating legal reasons as necessary material for a specific 645 domain of morality, namely, the morality of coercion. Finally, Shapiro attempts to obviate this challenge by claiming that a shared representation of plans as morally legitimate responses to antecedent moral problems is morally valuable in itself. The ensuing analysis will be dedicated to deflating the pressure of these two concerns. My line reasoning aspires to dispel these concerns in three steps. Firstly, I will highlight the importance of making our normative accounts responsive to our metaphysical theories. In this respect, I shall argue that provided that instead of legal facts it is dispositional facts about the enforceability of obligations and rights that make legal propositions true, an account of legal normativity must be capable of accommodating this conclusion. Secondly, our concern to justify the ways in which law can deviate from ordinary instances of reason-giving loses a great degree of its urgency if we consider the hypothesis that the normativity of law may be closer to the normativity of value than the normativity of reasons.531 531 Apparently, I am already shouldering a substantive premise, namely, that value is not reducible to reasons. There is growing support in favour of this view but reasons of space and topic choice do not allow me another digression into the domain of metaethics (see, for instance, Ulrike Heuer, ‘Beyond Wrong Reasons: The Buck-Passing Account of Value’ in Michael S. Brady (ed.), New Waves in Metaethics, Palgrave Macmillan, 2010, pp. 166-184 and Kieran Setiya, Reasons without Rationalism, Princeton NJ: Princeton University Press, 2010). To vindicate this hypothesis it is not necessary to digress into the intricacies of vindicating the irreducibility of value to reasons mainly because the two-dimensional scheme I have been defending takes distance or difference in degree rather than kinship (value or reasons) as evidence for a theory’s relative position. That being said, I hope that by showing how the aspect of value associated with the practice of law can be accommodated by the only quadrant I have so far left uninhabited can lend some support to the overall project of vindicating the irreducibility of value. 646 Painting with a broad brush, I shall dedicate this second stage of my argument to showing how among four exemplary types of practice-based dispositions enforceability qualifies as the best candidate to inhabit the last and so far uncharted quadrant featuring constraining/constitutive facts. Thirdly, I will conclude the last section of this part with a preliminary account of what grounds the normative facts in which facts about enforceability figure. More precisely, I will try to defend the idea that the source of legal normativity features a constitutive relation between requirements of trust validation and the intrinsic value of a particular type of shared agency, namely, the capacity to jointly act for the sake of each other’s freedom. V.1. Legal Normativity Without Legal Facts In the first part of this thesis I defended the position that legal facts—that is, facts about the existence of legal norms, legal obligations or whatever they are reducible to—are existentially superfluous in the sense that what actually does the explanatory work in terms of grounding the truth of legal propositions are dispositional facts about which obligations or rights are enforceable in a given political community. More precisely, I favored the view that legal facts need not figure in a proper account of legal truth in the sense that the truthmakers of legal propositions need not and do not feature 647 ‘legal entities’ like normative facts about the obtaining of legal obligations or existential facts about the existence of legal norms or ‘legal’ plans. That being said, I devoted a considerable amount of space to warn against an oversimplification of this approach. More specifically, I argued that the ontological dispensability of legal facts does not entail that existential claims to the effect that a legal norm of system S exists at time t or that a legal obligation of system S at time t obtains are literally false. Provided that there is a way of conclusively adjudicating the dispute about what kind of entity (legal obligation, legal norm, ‘legal’ plan) is quantified over in ordinary assertions of legal content, I would be happy to grant that assertions of this sort are literally true. What I’ve been skeptical about is the transparency of the quantifier commitments of one’s metaphysical theory into one’s respective truthmaker commitments understood as ‘just those things that must exist to make true the sentences of that theory’.532 My proposal has been to consider the possibility of there not being a one-to-one or isomorphic relation between the logical form of existential claims like “there is a legal norm” or constitutive claims like “The proposition that φ-ing is obligatory constitutes a legal norm of S” and the inventory of facts that make these claims true. Allowing a more abrasive ontological razor to do the cutting was meant to result in a simpler metaphysics that dispenses with cryptic nominalizations 532 See Cameron, R. (2008), ‘Truthmakers and ontological commitment: Or how to deal with complex objects and mathematical ontology without getting into trouble’ in Philosophical Studies (2008) 140:1-18, p. 4. 648 like THE LAW or abstract entities like ‘legal norm’, ‘legal plan’ or ‘legal obligation’ at the dimension of what is ontologically—in the truthmaking or grounding as opposed to the existential or quantificational sense of the term —committing. As I intend to explain, my pleonastic treatment of accounts of legal facts that aim to bestow an ontological counterpart—be it a monadic property, relation, state of affairs or abstract object of a particularly ‘legal’ nature— to ‘legality’ is precisely what enhances my intuition that law is not action- guiding in the robust sense advocated by the Nexus theorists. The reason is as simple as the idea that as soon as one resists the temptation of enlisting facts about what THE LAW requires of us to do or omit or facts about the existence of legal norms into our inventory of possible truthmakers of legal propositions, it becomes much less obvious that the normativity, if any, involved in the legal case is of the action-guiding sort. Assuming—as I propose instead—that facts about enforceability are the proper truthmakers of legal propositions one would be at least justified in being reluctant to think that the sense in which the fact that the obligation to φ is enforceable in a given community is normatively relevant by virtue of its furnishing a categorical reason to φ.533 533 The emphasis I place in the categorical nature of the reasons provided is motivated by the concern that if our aim is to come up with a plausible account of the normative pressure associated with law, it would be self-defeating to assume that facts about enforceability are derivatively or prudentially normative. That is to say, if the fact that φ- ing is enforceable by some actual people in a given community just enables or triggers a prudential reason to desire the avoidance of sanctions or physical coercion, then it would 649 Returning to the initial remark about the prospect of employing an alternative route to explaining legal normativity without shouldering any truthmaker commitment to the relevance of legal facts, it should be noted that what mainly motivates this alternative picture is a methodological concern that, I must confess, one can intelligibly neglect, yet not easily dismiss: that there is no point in keeping one’s mind busy with questions about the normativity of law unless one can intelligibly assume that a distinct type of wrong is committed when there is a violation of legal normativity. The immediate objection that my argument evidently makes me answerable to is that it is at least peculiar if not nonsensical to insist on talking about legal normativity whereas my favoured metaphysics does not be question-begging to assume that there is any reason to want to distinguish law from other normative enterprises. It would be sufficient to endorse—at the metaphysical dimension—an old-cherished sanction-based account of legal obligation and then proceed— at the normative dimension—with a deflationary approach to legal normativity according to which law is only instrumentally or derivatively normative in the sense that probabilistic facts about the possibility of enforcing legal norms trigger prudential reasons to comply with them. Consequently, if there is any hope in aspiring to allow facts about enforceability to do the normative job in the place of facts about what THE LAW requires of us to do or of facts about the existence of legal norms, it should be already obvious that the normativity involved must be of the categorical sort. In the upcoming section V.2. entitled ‘Genres of Social Normativity: Law, Games, Promises and Civility’ I shall introduce a further qualification about the derivative normativity of practices including the practice of law. This does not mark a departure from my present remarks; as I aim to highlight further downstream I intend to preserve a distinction between the normative relevance of facts about the sayings and doings of legal officials and the normative relevance of facts about enforceability. The latter type of fact is non-derivatively normative in virtue of the fact that it instantiates an independent principle enjoining the validation of trust. 650 accord fundamentality to anything law-like, at least in the standard sense of talking about law as a constitutive convention, a system of primary and secondary rules, an institutional master plan or an argumentative practice of some sort, to name a few candidate “entities”. Being aware of how disheartening this response may come across, the best argument I can offer in support of my preserving the term ‘legal’ in my analysis of the distinct type of normativity I aim to describe is more concessive than I might want it to be. I would dare to say that if any intelligible mention of legal normativity must be responsive to a metaphysics that reserves a prominent position for the referent(s) of the term LAW, then the normative phenomenon I aim to describe is either irrelevant or uninteresting for legal philosophers. If, on the other hand, adjectival, nominal or adverbial uses of legality are metaphysically innocuous much in the same way that talk of statues or chairs can be legitimate—in the existential or quantificational sense of ontological commitment—without being truthmaker-committing, then I see no reason why we should be reluctant to talk about legal normativity, instead of say the normativity of enforceable obligations.534 The idea I am trying to vindicate is that what should be relevant in any account purporting to explain how certain facts acquire normative import is not their pictorial or isomorphic responsiveness to the language we use to talk about a target domain but the extent to which they can account for as 534 Or in more complete terms the normativity of enforceable joint requirements. 651 many aspects, conflicting or mutually entailing, of the target domain itself. The crucial element in this claim lies precisely in the italics. I do confess that my theoretical commitments hail from a metaphysical tradition that is moderately suspicious of “ontologizing” language, that is, of any aspiration to make the logical form of true sentences linearly responsive to worldly constituents. As I hope to show, there is much substance in deciding to keep separate our accounts of linguistic and ontological treatments of a target domain. Being, however, aware of the fact that this is a rather strong premise that many legal philosophers would consider as unworthy even of their pro tanto endorsement, the invitation I would like to extend concerns a much more moderate claim: that we can both grant the truthfulness of claims about the existence of legal norms, the obtaining of legal obligations or the existence of plans and reject the view that they are indispensable for doing the explanatory work in our target domain which is the one of enforceable obligations and rights within a given political community. The reason for rejecting the latter view is partly inherited by the reasons I have proffered— in the first part of the thesis—in favour of dispensing with legal facts as truthmakers of legal propositions. We can indefinitely prolong of our talk of legal facts as if they formed part of a stratified ontology with moral or/and social facts figuring at a more basic dimension but we will always stumble on the challenge of explaining the relationship among the different layers that constitute it. This is not to say that this is an insurmountable obstacle 652 no one who is an advocate of methodological prudence should try to obviate. All I try to pinpoint is that specifically inserting legal facts into a stratified ontology is too much of a burdensome task for serving the purpose of demarcating the target domain at hand both in its metaphysical and normative dimension. With regard to law’s normative dimension, introducing a stratified ontology comes at the high price of having to decide how and why legal facts can have any non-redundant normative force or indeed whether in fact they have any normative force at all. The futility of taking up the latter challenge, I believe, is the best argument I can advance against any strategy that aspires to explain legal normativity in terms of legal facts themselves instead of inquiring into whether there can be a class of more fundamental facts endowed with explanatory and normative potency that are neither an ontologically free lunch nor ontologically reducible to more basic facts. As it is evidenced by my line of reasoning so far, I will treat facts about enforceability as the best candidate for defending an alternative account of what goes distinctly wrong when the normativity of law is violated. The gist of the preceding ruminations has been that the kind of normative requirements I will associate with law take wide scope over different types of manifestations of enforceability. This is to say that facts about enforceability are normatively salient by virtue of their being action- constraining rather than action-guiding. The main question about the possibility of response-constraining requirements is whether it is possible to 653 accept the existence of normative requirements whose proper object is not an act-type or attitude but the disjunction of the latter.535 If the answer is negative, then anyone but the most moderate critic of my approach would have a compelling reason to accuse me of hopelessly trying to dispense with an innocuous, or even indispensable, platitude about law: that is, that law is a source of requirements that are supposed to be capable of exclusively or concurrently guiding the actions of its subjects. Indeed, any attempt to disprove the validity of this platitude must be accompanied by strong evidence that insisting on treating the law as one among many derivative or non-derivative sources of reasons for action is a severe distortion of what really goes wrong when something goes legally wrong. As I hope to illustrate, a positive answer to the question of whether there exist distinct normative grounds for violations of legal normativity and my rejection of the applicability of the action-guidance model to the legal case are mutually supportive. This is not a frivolous addition to the emerging complexity I am already guilty of flirting with but a necessary complement of an understanding of practical normativity that does not involve action- guidance in the Nexus sense I have elaborated earlier. What is the formal connection between the main claim of this section—the ancillary claim being that facts about legal content, besides their action-constraining 535 In the course of my exposition I will specify the proper object of requirements of enforceability as the disjunction of manifestations of enforceable obligations. Thus, properly speaking, the fact that an obligation to φ is enforceable requires that it be conformed with or enforced, or in proper canonical terms, that trust in its agent-neutral nature be reaffirmed or restored. 654 capacity, are also capable of constitutive impact—that the normativity of law is not of the action-guiding but of the action-constraining genre and that there is an alternative account of how things can go normatively wrong when law is being violated? This is precisely the point at which one’s favoured metaphysics of law can be crucial in articulating our normative concerns, or so I shall argue. V.2. Genres of Social Normativity: Law, Games, Promises and Civility Before I deploy my argument about the nature and grounds of legal normativity I will venture a last digression by way of answering to the legitimate question of whether my attempted deviation from the standard model is idiosyncratic or too ad hoc to merit any attention whatsoever. One may reasonably retort that trying to disassociate the way in which questions about legal normativity are parsed and understood from the dominant reasons-based trend in the philosophy of normativity is very close to being either misguided or even worse naïve. I have to confess that this type of question has never stopped worrying me as it is premised on a very compelling idea, that is, the thought that there is at least strong epistemic and methodological evidence that if anything of explanatory value can be achieved in the domain of practical normativity, it can only be attained by inquiring into the kind of facts that are capable of furnishing reasons. 655 My guess is that the worth of following an alternative route can become more visible if it is possible to trace its origin and aspiration in the broader discourse regarding the normativity of social practices. A basic question in this regard is whether and how social practices can operate as non- derivative536 sources of normative requirements. There is a variety of normativist accounts of social practices that are equally anti-metaphysical in their orientation. One particularly robust version of this tradition of thought is Robert Brandom’s pragmatist normativism which assigns to the philosopher the task of ‘making explicit’ the patterns of holding agents accountable for performances that are implicit in our social habits and practices.537 Another example is Ronald Dworkin’s political normativism which aims to derive the normativity of some social practices not from practice-implicit patterns of deontic interaction but from the principles of political morality that justify practice-based patterns of coercive interaction.538 On the other hand there have been numerous attempts to reduce the normativity of social practices to the normativity of a source that is extrinsic to the normative content of a practice. A common concern animating all critical responses to the question of whether social practices can be non-derivatively normative is that the pervasive contingency and 536 John Broome defines derivative normativity as a relation between sources of requirements. In his words, ‘a source of requirements is derivatively normative when it is normative and when there is an explanation of why it is normative that stems from some different source of normative requirements. In other words, a source is derivatively normative when it is made normative by some different normative source’ (Rationality Through Reasoning, Oxford: Blackwell Publishing, 2013, p. 178). 656 sometimes arbitrariness of the process of producing social norms prevents it from operating as a forum of principle. All critical approaches converge in their treatment of non-reductive accounts of the normativity of social practices as being guilty of committing a naturalistic fallacy of some sort. The main idea is that the descriptive material of a practice is too coarse- grained to merit the attribution of exhibiting a pattern of principled co- variance with normative demands. That being said, the spectrum of these critical theories is impressively wide. One family of views descending from the natural law tradition appeals to the concept of normative power thus shifting the focus from the properties of practice-instantiating actions to a property of agents or collectivities which consists in their capacity to alter 537 Whereas Brandom’s main focus is the normativity of meaning and the debunking of representationalism’s relevance for the theory of meaning, his heavy reliance on a pragmatist understanding of standards of correctness endows his project with an aspirational tone. As he notes, ‘there is a need for a pragmatist conception of norms—a notion of primitive correctness of performance implicit in practice that precede and are presupposed by their explicit formulation in rules and principles’ (in R. Brandom, Making It Explicit, Cambridge MA: Harvard University Press, 1994, p. 21). His pragmatist account reverses the order of explanation between principles and practices noting that norms implicitly reside in practices. For a critical account of this reversal see Joseph Heath, ‘Brandom et les sources de la normativité’ in Philosophiques, (2001) 28 (1) : 27-46 (English version available at http://homes.chass.utoronto.ca/~jheath/Brandom%28ev %29.pdf); see, also, Thomas Fossen, ‘Politicizing Brandom's Pragmatism: Normativity and the Agonal Character of Social Practice’ in European Journal of Philosophy (2014) 22 (3): 371-95. 538 Whereas Dworkin concurs with the pragmatists; aversion to lofty metaphysics he does not endorse Brandom’s explanatory reversal. In Dworkin’s work norms are derived from the moral principles that are embodied by political practices. 657 the normative landscape by virtue of exercises of one’s will or authoritative pronouncements respectively.539 Another family of views is conventionalist in spirit focusing on how practice-based obligations can arise from the extrinsic value of a conventional arrangement.540 Finally, an alternative approach locates the normativity of practice-based requirements in their capacity to instantiate principles governing interpersonal relations.541 In what follows I will attempt to harness an aspect of this controversy in the service of demonstrating that what I have identified in the last section of the previous part as the proper mechanics of the practice of making law is derivatively normative in the sense that the practice’s relevance for determining the content of the law is a necessary but not sufficient 539 See among others J. Raz, ‘Is There a Reason to Keep Promises? (October 16, 2012). Columbia Public Law Research Paper No.12-320; Oxford Legal Studies Research Paper No. 62/2012; King's College London Law School Research Paper No. 2014-5. Available at SSRN: http://ssrn.com/abstract=2162656 or http://dx.doi.org/10.2139/ssrn.2162656 and Gary Watson, ‘Asserting and Promising’ in Philosophical Studies (2004) 117 (1-2): 57–77. 540 There are various strands in this tradition. For a classical contractarian approach see David Gauthier, Morals by Agreement, Oxford: Clarendon Press, 1986. For an equally classical contractualist approach see John Rawls, A Theory of Justice, Cambridge, MA: Harvard University Press, 1971. Finally for more recent rule-utilitarian analyses, see Brad Hooker, Ideal Code, Real World: A Rule Consequentialist Theory of Morality, Oxford: Clarendon Press, 2000. 541 Interpersonal accounts focus alternatively on the concept of joint commitment or practical authority in order to account for the idea that practice-based obligations are intrinsically (as a matter of conceptual necessity) tied to normative principles of interaction. Two major representatives of this approach are Stephen Darwall (see, especially, his ‘Demystifying Promises’ in Hanoch Sheinman (ed.), Promises and Agreements: Philosophical Essays, Oxford: Oxford University Press, 2011, pp. 255-76) and Margaret Gilbert, ‘Three Dogmas about Promising’, ibid, pp. 80-108. 658 determinant of its normative import. In that sense I will take a critical stance towards Dworkin’s view about the continuity between the grounds of law and the force of law without, however, recoiling from the idea that the normativity of law must be somehow responsive to its metaphysics. To adumbrate a key theme of the ensuing argument, my idea will be that, whereas facts about the obtaining of enforceable obligations are partly grounded in the capacity of law-making practices to invite trust in the agent-neutral reasons for having those obligations, the fact that the obtaining of an enforceable obligation imposes a normative constraint of some sort is grounded in a principle that holds independently of the principle that determines whether the invited trust is warranted. On this picture it is not the normativity of law—construed as the normativity of enforceable obligations—that is derivatively normative but the normativity of the practice of law542, namely, the normative effect of the practice of 542 Besides Dworkin’s route for defending the collapse between these two aspects, David Enoch has also defended a positivist account of this collapse. His idea roughly is that law is derivatively normative in the qualified sense that it legal trigger the generation of law- independent conditional or “dormant” in Enoch’s jargon normative reasons by manipulating or reshuffling certain aspects of the non-normative circumstances of a case. Enoch notes that For something to play this triggering role, in other words, it need not be normative; rather, it suffices that it is normatively significant, that is, that there is some (true) normative judgment that is sensitive to whether that thing obtains. And of course, there is nothing at all mysterious about the law playing this minor role’ (David Enoch, Reason-Giving and the Law’ in Leslie Green and Brian Leiter (eds.), Oxford Studies in Philosophy of Law, Volume 1, Oxford: Oxford University Press, 2011, pp. 1-38, at 27). For a critical response to this line of argument see Veronica Rodriguez-Blanco, ‘Reasons In Action v Triggering Reasons: A Reply to Enoch on Reason-Giving and Legal Normativity’ in Problema (2013) 7: 3-25. 659 inviting the trust of members of a political community that a given pattern of action is supported by decisive reasons they can all share.543 To make this demonstration more plausible I have decided to provisionally halt the progress of my argument with a view to exploring whether and how a principled distinction between the determination of the 543 The strategy of postulating two interconnected but independently appealing principles, one governing the determination of the output of a practice and another one governing the normativity of that output, is already familiar from Thomas Scanlon’s theory of promissory obligation (see his What We Owe to Each Other, Cambridge, MA: Harvard University Press, 1998, esp. pp. 300 ff.). In response to objections of circularity raised by his critics Scanlon has refined his expectationalist account of promissory obligation by way of distinguishing what warrants the promisee’s expectation that the promisor will abide by her promise from what makes it the case that promises ought to be kept. Promissory obligations are grounded in what Scanlon refers to as the principle of fidelity which states that insofar as a promise provides a recipient with warranted assurance the value of this assurance is sufficient to establish a moral obligation to keep our promises. On the other hand, the assurance provided by a promise is warranted by a principle of due care stating that attempting to lead another to form a reasonable yet false expectation is morally wrong. That being said there is a considerable amount of follow-up criticism of Scanlon’s attempt to obviate the circularity problem. Critical views of Scanlon’s “corrective” move are centered on the general remark that promises are poorly equipped to provide assurance for the right kind of reasons. One relevant concern is that the relevant assurance remains unwarranted as long as it remains an open question whether a promisor is entitled to change her initial intention to act in a particular way. The upshot of this critique is that without a background practice promises cannot provide the type of assurance needed to trigger Scanlon’s principle of fidelity. This is a fair critique on which nonetheless I see no compelling reason to take a stance. The reason is that despite the overlap of my argument with Scanlon’s “two-principles” account I have not taken the further step of disassociating the way in which legal practices invite our trust from the importance of there being a practice as such. Whereas on Scanlon’s expectationalist account a practice of promising as such does not figure in the grounds of our assurance, legal practices are part of what grounds our trust in virtue of the fact that they ground the distinctness of the disposition of enforceability from its manifestations and also enable an omnilateral control of acts of trust invitation. 660 content of a practice and the determination of its normativity is not an ad hoc move but can serve the diagnostic purpose of distinguishing practices that can trigger practice-independent principles from practices that fail in this respect. As evidenced by the vocabulary I use to frame this argument, I will partly engage in the controversy I described above by siding with those who believe that if a practice is normative in the sense that its output is normatively committing, it is normative in virtue of a source that is practice- independent in the specified sense that the source of its normativity is not identical with what determines the content of the practice itself. That being said I should be more cautious about the distinctions I make in order to avoid fuelling a devastating confusion about the orientation of my argument. As it stands the specification I just described may convey the wrong impression that a practice is derivatively normative in the sense that its content is grounded in purely descriptive facts about the sayings and doings of practice participants. Consequently, its normative import will be a contingent fact that must be determined by an independent normative source that is not implicated in the generation of the practice’s content. Whereas this is an option that has been widely adopted by proponents of legal positivism, it is not an option I have committed myself to either explicitly or implicitly. The way I intend to cash out this specification of how the practice of law and, consequently, some other practices can be derivatively normative points to the exactly opposite direction. The idea I intend to take on board is not that the grounds of the content of a practice 661 are descriptive whereas the grounds of the normative import of this content are (obviously) normative. What I have in mind instead is that whereas both the content of a practice and its normative import are partly grounded in normative facts, the normative grounds corresponding to each instance of determination are not identical.544 Keeping record of this important note, there is one more issue that needs to be clarified before going into any further detail. The question is not just what it means to be derivatively normative but also what it means for a practice to be derivatively normative. If we exhaust our attention to the first question we run the risk of missing a crucial point about the role of practices as such in this story. The problem is that the first question can be answered in a way that trivializes the role of a practice by reducing a practice to whatever can qualify as a trigger of an external normative source on grounds that make no reference to the practice itself. This is precisely the case with Scanlon’s argument about the practice of promising and its relevance for the explanation of promissory obligation. Scanlon notably argues that the existence of a practice of promising as such does 544 It is precisely in this respect that my account is substantially different from Dworkin’s defense of the non-derivative normativity of practices informed by the principle of integrity. Whereas Dworkin believes that save some highly exceptional circumstances an inclusive conception of integrity can ground both facts about legal content and the normative fact that a legal fact is a reason for enforcement on demand, the view I tend to favour allows a distinction between the normative grounds of legal facts (or, more precisely, facts about enforceability) and the normative grounds of facts about the normative import of legal facts. It is precisely in this sense that I intend to contrast my ‘derivativist’ account from Dworkin’s non-derivative account of the normativity of legal practice. 662 not figure in the explanation of the fact that an expectation produced by a promissory utterance can reliably trigger an independently holding principle of fidelity. In particular he assigns the latter task to a principle that makes no reference to the practice of promising and is not merely entailed by the principle of fidelity.545 In that sense it is simply mistaken to claim that the practice of promising is derivatively normative precisely because the practice itself plays no role in determining whether an expectation qualifies as a proper trigger of the principle of fidelity. In other words, the practice of promising is not even derivatively normative because it is not essentially involved in the triggering of promissory obligations.546 545 Scanlon calls this principle the Principle of Due Care. According to this principle, One must exercise due care not to lead others to form reasonable but false expectations about what one will do when one has good reason to believe that they would suffer significant loss as a result of relying on these expectations. (see Thomas Scanlon, What We Owe to Each Other, supra note 13, p. 300). Crucially, nothing about the practice of promise-making figures in the content of that principle. As a result there is nothing “special” about the way in which promises as opposed to other acts like advising or warning produce warranted assurance. 546 The notion of essential triggering I have in mind is very close to Jonathan Dancy’s understanding of enabling conditions or enablers. In his words, ‘there is a general distinction between a feature that plays a certain role and a feature whose presence or absence is required for the first feature to play its role, but which does not play that role itself. The distinction between favouring and enabling is a special case of this general distinction’ (J. Dancy, Ethics Without Principles, Oxford: Clarendon Press, 2004, p. 45). Dancy recognizes that our epistemic access to reasons may be obstructed due to the indefinitely continuing cycle of enablers. In this regard he notes that ‘enablers are supposed to enable an already existing feature to have a certain value. We are looking for examples where what is enabled is not the presence of the valuable feature, but the value of a present feature. (This is why it can be misleading to think of enabling conditions merely as necessary conditions for value; the notion of a necessary condition is too indiscriminate.)’ (ibid, p. 172). 663 By sharp contrast, the view I plan to defend here is that two of the four practices I intend to contrastively examine literally are derivatively normative in the sense they are essentially implicated in what makes something qualify as a proper trigger of an independent principle. Reasons of space do not allow me to critically engage all views on this matter. At the same time I believe that it is critically important to show how the practice of law is derivatively normative by virtue of a pattern that is equally applicable to other kinds of social practice. This is precisely the sense in which the ‘legal’ solution I plan to propose is not tediously ad hoc. To this effect I will structure this section as a general introduction to the logic of this approach by venturing a contrastive evaluation of how four archetypal, so to speak, kinds of social practice respond to the scrutiny of this approach.547 More precisely this juxtaposition will feature law, civility, games and promises on the basis of pursuing a principled explanation of why only the two first types of practice (law and civility) are essentially involved in the triggering of normative requirements. The idea will be that only in the case of law and the practice of civility facts about the sayings and doings of participants (practice facts) essentially figure in the explanation of why facts about warranted trust (in the case of law) or facts about warranted motivation (in the case of civility) can qualify as triggers of 547 I have deliberately excluded from my sampling linguistic practices or “language games” mainly because they do not feature practical deliberation as a key component of their function. 664 principles enjoining the validation of trust or acting for publicly evaluable reasons respectively. By sharp contrast, I will try to defend the claim that ludic practices like chess or baseball as well as the practice of promising are not even derivatively normative. Whereas this is not a surprising conclusion in the case of chess, it may very well be in the case of promising. At this early stage I will confine myself to a couple of comments. First off, denying that the practice of promise-making is derivatively normative need not commit us to the idea that promissory obligations are not really binding. This disassociation can be simply explained by the fact that facts about the practice of promising do not figure essentially in the explanation of what triggers a promissory obligation. This conclusion will serve as an alternative confirmation of Scanlon’s reductive account of the normativity of promissory obligations. A. Practice Markers: The Role of Constitution Providing a more concise picture of an informative way in which law belongs to a larger family of social practices is more easily said than done. To be honest, the source of difficulty in this case is self-inflicted in the sense that it is the type of metaontological commitments I have shouldered in the first part of this thesis that prevents me from licensing myself to use the 665 concept of a constitutive rule as the main metaphysical notion that glues these different phenomena together. As a brief reminder, part of my argumentative strategy in the first part was based on the claim that we should not “ontologize” claims about material or abstract constitution. More precisely, whereas claims to this effect can be literally true in a non- paraphrasable way I cautioned against the assumption that the truthmakers of constitutive propositions must be structurally responsive to the logical form of the latter such that for the claim that A constitutes B to be true it must also be the case that we are ontologically committed to Bs. This metaontological position is one that inevitably commits me with regard to how I intend to treat constitutive claims abounding in the broader domain of social practices. The way I sought to overcome this challenge in the first part was to resort to a view of growing popularity among philosophers of science according to which the truth of nomic propositions, that is, propositions about laws of nature or ceteris paribus laws, is not ontologically committing to nomic entities such as relations of nomic necessitation. The general idea is that in the case of laws of nature dispositional properties essentially borne by other properties can do all the necessary metaphysical work without necessitating the postulation of an ontological counterpart to the concept of a law of nature. Keeping analogies in sight, I took the liberty of transplanting this idea into the legal domain which is also, in a much more attenuated sense, loaded with nomic innuendos. In this regard I defended the hypothesis that our veridical talk 666 about the constitution of legal norms need not commit us to the existence of “nomic” entities like legal norms and that a more modest solution is to cast the truthmakers of these claims in dispositional terms such that the claim that an obligation to φ constitutes a legal norm of S is made true by the fact that the obligation to φ is enforceable in S, or in canonical terms, is disposed to validate our trust qua members of S that φ-ing is supported by agent-neutral reasons. In light of this double commitment to the non-committing character of constitutive claims and, consequently, to the dispositional nature of legal truthmaking I would like to dare a final step with a view to expanding this model to non-legal practices. Having already developed a dispositional account of facts about legal content I will try to structure the explanation of what makes some practices derivatively normative on the basis of a common metaphysical hypothesis. In very rough terms the hypothesis is that the content of the four exemplary practices I plan to co-examine, namely, law, civility, games and promising, can be recast in dispositional language such that besides facts about enforceability we could also talk about other dispositional facts that compose the content of the other three types of practice. Before detailing this step further I should recognize that one may reasonably retort that I am trying to extend the applicability of my argument to non-legal cases in order to lend additional support, in retrospect, to my initial choice of conditioning the truth of legal constitutive claims on the obtaining of enforceable obligations and rights. The only way I 667 could respond to the charge of being excessively strategic about the ambit of my argument is to try to demonstrate that the extension of my dispositional account is not ad hoc. To this effect I would suggest that we take as a measure of success of this demonstration the explanatory yield of this hypothesis. What is crucial in this respect is the aspect by which this demonstration can be ranked as explanatorily superior to others. In this regard appealing to the fact that a dispositional account of social practices surpasses competing accounts in metaphysical parsimony is a legitimate move in the sense that it involves the claim that we can explain more things with lesser commitments. But it would still be a move on the threshold of fair play in the sense that current research in social ontology is marked by a remarkable progress in meeting the demands of metaphysical modesty without embracing dispositions as a primary concept. Taking into account this concern I would like to suggest an alternative standard of explanatory potency which shifts the focus from how well dispositions can carve the reality of social practices at the joints to how well dispositions can explain the normative discontinuity between the four exemplary cases I intend to juxtapose. The puzzle to which I want to draw my attention can be illustrated by the variations in our attribution of derivative normativity as we navigate across the spectrum of formality. For instance, despite their purported strictness in terms of their application the rules of games like chess or baseball are not associated with any sort of normative requirements, whereas, at the same time, practices that display a 668 similar degree of formality like law are commonly taken to have normative import. On the other side of the spectrum, evaluative practices revolving around the attribution of thick personality traits like courage, cruelty or generosity do not partake of the formality of the former but are equally salient in terms of their action-guiding capacity. In what follows I will structure this digression in two steps. In a first step I will single out the concept of constitution as a salient component of the phenomenology of the types of social practice I intend to contrastively examine. In light of my previous remarks I will not invest my remarks on constitution with ontological weight which I aim to reserve for the role I will assign to the concept of disposition. In a second step, I will base my contrastive examination on the corresponding dispositions with whom I plan to associate the four exemplary practices. Besides enforceability with which we are already familiar from the first part of the thesis, I shall introduce three more dispositional concepts corresponding to each of the other three practice types I have sampled out. In anticipation of a more detailed analysis further downstream, I will confine myself for now to briefly defining these concepts. The first dispositional concept is public evaluability or the disposition of an act to be publicly evaluated as being of thick value which I aim to associate with the practice of civility understood as an overarching concept applying to any particular practice of thick evaluation. Approaching the verge of linguistic dexterity I will suggest the term conducibility in order to describe the disposition of promissory utterances to serve as a 669 means of external guidance of the promisor’s conduct. Finally, by ludicity I will be referring to the disposition of moves or performances prescribed within the context of a game to assign to their performers the role of a player. This conceptual rearrangement will be necessary so long as we feel entitled to expect a principled, fine-grained explanation of how these practices differ with respect to their normative import. The upshot of this contrastive examination will be that only the practices of law and civility are derivatively normative but in a way that allocates them to two different normative quadrants. To repeat my earlier remarks, I shall argue that facts about the disposition of certain act-types to be publicly evaluated as being courageous, generous or cruel are normatively salient in the action-guiding sense and normatively impactful in the constitutive sense. By contrast, I shall argue that facts about enforceability are normatively salient in the action-constraining sense and normatively impactful, also, in the constitutive sense. In a first move I should begin with demarcating the limits of some useful platitudes, primarily, the ones related to the identity conditions of social practices. The term ‘social practice’ is conventionally associated with any form of activity specified by a system of rules, norms or principles which constitute offices, roles, moves, duties, powers, penalties, defences and so forth. In what follows I will venture to qualify the definition of social 670 practice by inserting the notion of constitutive impact as a clause applicable only to those social practices that can be derivatively normative. By derivative normativity I intend to convey the thought that some social practices can operate as enablers of normative requirements emanating from a practice-independent normative source. To jog the reader’s memory, constitutive impact is one of the two ways—the other being depictive impact —by virtue of which a normatively relevant fact can be implicated in the evaluation of an agent with respect to her actions or behaviour, more generally. What distinguishes depictive from constitutive impact is the modal profile of agential evaluation, namely, whether the ascription of a positive or negative evaluative trait to an agent depends on the actual or counterfactual treatment of a normatively relevant fact as a reason for action. In light of this distinction I would dare to suggest that constitutive impact is a distinctive mark of the way in which agents are subject to evaluation by reference to their practice-instantiating actions. Being aware that in the domain of social practices the concept of ‘constitution’ is commonly associated with the metaphysical process by which ordinary actions count as (constitute) performances of roles with a certain kind of normative import, I do not intend to question the order of things by injecting some alien terminology. Instances of the metaphysical use of the notion of constitution can be found under various guises. The most straightforward use regards direct appeals to officially codified constitutive rules in 671 practices like games or etiquette. Less direct appeals to the notion of constitution can be found in other genres of civility including the attribution of thick evaluative properties like courageousness or cruelty. In this latter case, whereas it is rather uncommon to talk about constitutive rules, it is not uncommon to talk about the way in which a descriptively defined behaviour constitutes an act of courtesy or cruelty. For instance, we may say that the ability and willingness to confront fear, pain, danger, uncertainty or intimidation constitutes an instance of being courageous.548 Promising is another case where indirect appeals to constitution can be uncovered. One possible way to describe the generation of a promise is to say that someone’s promissory utterance to φ constitutes a promise to φ. Last but not least law is a formidable case for the use of constitutive language on two different occasions. The most familiar one regards legal norms that purport to operate themselves as constitutive rules. For instance, there may exist a legal norm to the effect that marriage is constituted by the union between man and a woman. A less familiar sense is the one I have extensively elaborated upon in the first part. There I 548 The use of constitutive language provide no direct evidence either in favour or against the plausibility of the so-called ‘disentanglement argument’. The latter is an argument about the impossibility of separating the descriptive component of an evaluative concept from its thin evaluative component rather than the thick concept itself such that the description ‘being able and willing to confront fear, pain, danger, uncertainty or intimidation’ can be taken to entail the normative attribute ‘being good in that respect’. By sharp contrast, constitutive claims in the present context regard the relation between the descriptive component of a thick evaluative concept and the concept itself rather than its thin evaluative component. 672 suggested that assertions of general legal content are constitutive claims about the constitution of legal norms or legal obligations from non-legal constituents. In this latter sense, the content of a legal norm may not be constitutive but an assertion of its content is constitutive in the sense specified above. Whereas metaphysical appeals to the notion of constitution are ubiquitous, constitutive impact is not a global feature of social practices but an attribute of those social practices that operate as sources of derivative normativity. Whereas the metaphysical use of constitutive vocabulary cuts across the whole spectrum of social practices, constitutive impact can only be attributed to practices that display some sort of derivative normativity. It would make little sense to talk about evaluating agents for how well they instantiate the practice of, say, chess by invoking rules or principles that are not part of the content of the practice itself but normative standards determined by principles of strategy. For instance, there are various strategic parameters that determine what makes someone a good, great or stellar chess player. Whereas these parameters can be treated as reasons for action they are not part of the body of rules specifying what it is to play chess.549 In other words, whereas the practice of chess strategy is normatively impactful, the practice of chess is not. It would be misleading to 549 This point is concisely made by Judith Jarvis Thomson. She notes that ‘[t]he rules of chess strategy are different from the rules of chess: the latter tell you how to play chess, the former how to play chess well—a chess move is strategically correct if and only if it is a move conducive to winning’ (J.J. Thomson, Normativity, Chicago: Open Court, 2008, p. 169, fn 3). 673 treat those two numerically distinct practices as if they were one and the same phenomenon. What is crucial in this respect is that the rules of chess —as opposed to the rules of chess strategy—cannot be constitutively impactful because it makes no sense to consider treating them as reasons for action. What I seek to argue instead is that constitutive impact is the evaluative, so to speak, correlate of the metaphysical concept of a constitutive rule that dominates a great deal of discourse in social ontology. Whereas the latter metaphysical concept is applicable to the entire spectrum of practice- instantiating activity, the former normative concept only applies to normative social practices. What bridges these two concepts is the limited role they assign to facts about one’s actual psychology in determining what gets to count as a valid promise, or a move in game or a display of civility and who gets to be assessed as being praiseworthy or a member of the practice (a player). For example, what seems to constitute a valid promise is a promissory utterance of a certain kind rather than the fact that the promisor actually intends that her utterance counts as a promise.550 This is 550 Shapiro describes a key feature of what he calls ‘institutional normativity’ by also referring to the limited role of individual mental states. He claims that ‘the normativity of law is “institutional” in nature,’ which is to say that the legal relations may obtain between people independent of the particular intentions of those people’ (S. Shapiro, Legality, Cambridge MA: Harvard University Press, 2011, p. 210). Whereas Shapiro adjusts his remarks to the normative rather than the metaphysical aspect of practices governed by constitutive rules, his point is more metaphysical than metanormative. As he observes, it is the existence rather than the bindingness of legal relations that obtains regardless of our individual psychology, which is not, of course, to say that mental representations are not 674 not to say that the promisor need not display any purposiveness with regard to the normative effects of her utterance. For instance, it would be a strongly counterintuitive claim to insist that someone has made a valid promise if we know that her utterance has been coercively extracted.551 The ambit of this note is much more limited. All that it claims is that it is not necessary for the constitution of a promise that the promisor actually intends that her promissory utterance has the metaphysical consequence of constituting a promise. From the perspective of constitutive impact, what matters for one’s evaluation as instantiating the virtue of being courageous is not whether she acted in a particular way by actually recognizing the reason-giving force of the fact that her act is disposed to be publicly evaluated as being courageous but whether on a practice-based set of ideal conditions she could have treated the fact that a particular act-type is publicly evaluable as courageous as a reason for action. implicated at all in this process. The master plan itself must be the object of shared acceptance. What matters is that our idiosyncratic motivations behind this acceptance have no impact in determining its metaphysical leverage. 551 In a similar vein, Shapiro remarks that ‘[p]lans can be adopted without the planners actually intending that the community act accordingly. As a result, the community need not worry about whether the planners had these intentions. They can know that they are legally obligated simply because the planners followed the right procedures. Of course, the institutionality of law is ultimately grounded in intentions. Rules are legally valid because they were created pursuant to a rule that most offi cials accept. If officials stopped accepting the plan, then the plans created in accordance with it would cease to be legally valid as well’ (Legality, ibid, p. 211). 675 The previous comments are not meant to serve as an alternative theory of the nature of social practices. I would rather invite the reader to take these “enhancing” remarks as heuristically illustrative of how to talk about a wide variety of phenomena involving rule-governed behaviour in relatively neutral terms. This is even more the case once we recall the first part of this thesis where I explicitly sided with those who take the metaphysical role of constitution to be vulnerable to metaontological scrutiny. At the same time, being on the side of those who believe that not all kinds of social practice are normative in any robust sense, I will carefully avoid attributing the property of being normatively impactful to all the exemplary cases of practice that I will invoke with a view to finessing my argument. In light of these mitigating remarks, the association I have just made between the metaphysical use of the notion of constitution in the socio-ontological discourse and the notion of constitutive (normative) impact is not meant to report a fact about the nature of social practices. My point is primarily conceptual in the sense that the expressive force of constitutive language is manifested both by the way in which actions are represented as constituting particular roles or moves and by the way in which the evaluative profiles of agents are (counterfactually) constituted by their actions. The basic intuition behind the ‘normative impact’ jargon that I try to inject into this unified treatment of some exemplary social practices is that there is a worth-preserving intuition about the way in which participants in a normative practice are subject to evaluative appraisal. More precisely, the 676 idea is that in the domain of practice-governed activities the moral worth of actions or, equivalently, the evaluative reflection of agents in their actions does not depend on what practice-participants actually treat as a reason for acting in conformity or in violation of the rules of a practice but on whether they could treat a fact about what the practice recommends, requires or evaluates in a positive fashion as a reason for action. There seems to be a grain of truth in this claim if we recall ordinary instances of practice- instantiating behavior. Insofar as I observe etiquette by, say, adhering to table manners I can count as being polite even if the reasons that I treat as favoring my etiquette-conforming behavior are not related to the value of instantiating courtesy through conventionally specified actions. My actual reasons can range from simple peer pressure to the sheer vanity of pursuing popularity or admiration for my ‘savoir-faire’. This divergence between the facts that one can actually treat as reasons and the facts whose counterfactual treatment as reasons serves as a standard of evaluation just is a divergence between the facts with associate with an explanatory and an evaluative role respectively. At the same time, it seems morally appropriate to provide a unified evaluation of explanatorily divergent actions that happen to co-instantiate the same practice norms. Irrespective of how the explanation of practice-instantiating actions reflects the reasons that a participant actually treated as relevant, there is a level of public, so to speak, justification where the same action can be individuated in such a way that the value of our practice-instantiating activity is reflected in a unified 677 evaluation of behavior. To put it more graphically, it seems that the scope of application of practice-instantiating activity is demarcated by a strictly egalitarian rationale in the sense that to prevent discriminatory classifications of participants based on the purity, so to speak, of their motivation or the degree of fidelity they exhibit in the performance of their roles or tasks. In what follows, I shall argue that this egalitarian pattern of motive-independent evaluation can be meaningfully unfolded by applying the rationale of constitutive impact to the mechanics of practice- instantiation. Leaving figurative speech aside I will attempt to provide a more formal account of how constitutive impact is intrinsically related to practice- instantiating actions. An exemplary case of a norm of etiquette can illustrate how this definition is supposed to work. Suppose that in a given practice of courtesy the dinner host gets to take the first bite. Hence, from a metaphysical standpoint, the fact that the host’s taking the first bite is courteous is a reason for John, the host, to take the first bite.552 Now suppose that John did take the first bite as expected thus conforming to the respective requirement of etiquette. There is a composite task left behind regarding John’s moral evaluation as a host and the explanation of the event that actually occurred—his taking of the first bite. The way of accomplishing this task is to allow the possibility of divergence between the fact that will 552 In the second part of this section I will associate facts about the exemplification of thick evaluative properties with manifestations of the disposition of public evaluability. 678 serve as our standard for evaluating John as a courteous person and the fact we may appeal to in order to explain what actually happened. On the one hand we can ask in virtue of what John counts as being a polite host. A short answer would only refer to the descriptive fact that John actually took the first bite (as he was supposed to). But this is not entirely satisfactory for the simple reason that the same behavior could have occurred in a context that would render unintelligible any association of this behavior with an instance of courtesy. A better, more pithy answer must include reference to the fact that John could have treated the fact that according to the applicable rules of etiquette the host takes the first bite as a reason for doing what he actually did. It is the embedded fact, namely, the fact that figures as a constituent of a fact about our recognition of reasons that serves as the crucial standard of appraisal. On the other hand we may ask what explains John’s action of taking the first bite and here our explanation takes a different path. What can figure in the relevant explanation is only the fact that John actually treated as reason-giving. This may be a fact about etiquette or an array of different facts about his psychology or evaluative beliefs. This example has served to showcase a typical case of fact-divergence between the performers of the evaluative and the explanatory roles, namely, a case of constitutive impact. The way in which the concept of constitution reenters the picture is fairly reminiscent of the metaphysical way in which ordinary descriptive facts come to count as institutional or other types of 679 social facts.553 With regard to the metaphysical aspect of practice- instantiation, one and the same instance of actual conduct—in our example, John’s taking the first bite—can be viewed from two different angles. To reiterate a point made earlier, this need not amount to the claim that these two different angles literally correspond to numerically distinct property instances or objects. Whether or not this is taken to be so crucially depends one’s metaontological view about the determinants of ontological commitment. With this caveat in mind, I would like to invite the reader to consider the hypothesis that our talk about constitutive rules can remain veridical even if our favored ontology does not provide a slot for constituted objects. That being said it seems that depending on whether a given practice is in force at a given time and place we may represent one and the 553 As I already noted, whereas I do intend to take constitutive claims as literally true, I would prefer to forgo any ontological commitment to the creative output of constitutive relations. To take a non-legal example, whereas the fact that John’s act of taking the first bite constitutes an act of courtesy, this latter proposition need not be made true by a fact about the applicable constitutive rules. It may well be the case that this constitutive claim is made true by the fact that John’s act of taking the first bite exemplifies the property of being courteous, which is not equivalent to saying that there exist two act-tokens standing in a relation of abstract constitution. The property of courtesy is a thick evaluative property whose attribution is sensitive to facts about past attributions of the same property within a given practice. In another example, the proposition that John’s moving a piece in a diagonal direction to occupy a new vacant square constitutes John’s performing the role of the bishop in the game of chess. A claim about the constitutive relation between two move- tokens need not be made true by appeal to a constitutive rule. An alternative option is to say that its truthmaker is the fact that John’s particular moving of the piece realizes his property of being a chess player, or a member of the practice of chess. The latter property can be regarded as second-order in the sense that a participant bears this property so long as he bears a series of other descriptive properties consisting in specific actions or moves. 680 same behavioral instance in two different ways. On the one hand John’s behavior can be described as an ordinary intentional action that can be explained by recourse to the facts that John actually treated as relevant for deciding to do what he did. These may be facts about what the practice requires or praises but this is entirely contingent. They could also be facts about his physical condition (hunger), his emotions (selfishness) or his expectations (vanity). On the other hand, the same intentional action is represented as constituting an instance of practice-instantiating behavior. Whereas in a different context John’s taking the first bite would be nothing more than an act-token of eating, in the context of etiquette the same act also gets to count as an act of courtesy.554 Besides representing different act-tokens or agential states of affairs as standing in constitutive relations by virtue of a rule of some sort there is a further sense in which constitutive language may be used. Much in the same way that we may observe that John’s act of taking the first bite constitutes an act of courtesy we may also claim that John’s politeness or courtesy is constituted by his act of taking the first bite. This instance of constitutive (normative) impact is contrasted with cases whereby one’s 554 I will use the term practice-instantiating as an alternative to Michael Thompson’s technical term ‘practice-instancing’ employed in his account of the relation of social practices to agency. As Thompson explains, ‘practices and dispositions do not come to a limit in any action or event or in any totality of actions and events that could thereby be said to satisfy, execute or complete them; they can only be said to be manifested, instanced or exhibited in any such thing’ (Michael Thompson, Life and Action: Elementary Structures of Practice and Practical Thought, Cambridge, MA: Harvard University Press, 2008, p. 153). 681 moral profile is not constituted by but depicted in one’s conduct. In this latter sense constitutive talk serves to evaluate John’s conduct rather than report a fact about his action. This normative use of the same vocabulary is not fraught with the same problems we encountered in metaphysical appeals to the obtaining of constitutive rules. To see why this is the case we may recall that the way in which constitutive impact differs from depictive impact is modal in nature. To assert that John’s politeness is constituted by (instead of depicted in) his act of taking the first bite just is to say that John’s politeness is grounded in the fact that he could have treated the fact that the host’s taking the first bite is polite (according to a given practice) as a reason for action. In this sense constitutive impact can be re-described as counterfactual impact without any conceptual loss. B. Dispositional Markers: A Normativity Diagnostic In what remains I would like to provide a more principled explanation of why the four practice types I have singled out—law, games, civility, and promising—are not normatively on par. To this effect I will suggest that we provisionally take on board the hypothesis that a way to regiment the process by which some actions under some circumstances happen to instantiate a practice is by supposing that these instances are manifestations of different dispositions. An important caveat is that I do not 682 intend to use the concept of disposition in the reductive way in which it is used in dispositional accounts of rule-following. In this latter sense the relevant disposition is the disposition to follow a practice rule, which is a property borne by agents.555 By sharp contrast, the kind of use I have reserved for the notion of a disposition is not related to properties of agents but to properties of agential or normative states of affairs. For instance, I shall associate the practice of playing a game with the acquisition of the disposition of ludicity by certain, conventionally marked agential states of affairs as in “someone’s moving a piece of a certain shape any number of vacant squares in any diagonal direction on a board”. This association is not transparent to the radically different association of the practice of playing chess with the disposition to follow the rules of chess. The latter is a reductive claim about what a rule-governed practice is, whereas the former is a re-description of a rule-governed practice in dispositional terms. In light of this basic distinction, I would like to expand a bit further on the idea of contrastively examining these four types of social practice in dispositional terms. As I argued in the beginning of this section, the only ontological commitment I want to keep regards the replacement of legal facts with facts about enforceable obligations, privileges, powers and immunities. This is to say that the only disposition I really intend to stand up for is the disposition of enforceability. Beyond this claim my attribution 555 For a dispositional reduction of practices see T. Handfield and A. Bird, ‘ Dispositions, Rules, and Finks’ in Philosophical Studies (2008) 140 (2): 285-298 683 of dispositional features to the three remaining practices will be uneven for reasons I will immediately explain. With regard to the practice of civility I must confess that the premise I have taken on board is rather strong. Admittedly, the very choice of using the notion of civility as an “umbrella” disposition manifestable by the entirety of attributions of thick evaluative properties to actions is rather idiosyncratic. Whereas there are uses of the concept of civility suggesting that it is broad enough to encompass the attribution of various civic traits, there also much more specific uses of this term as evidenced by John Rawl’s appeal to the duty of civility as the duty of members of a political community to justify their decisions on fundamental political issues by reference only to public values and public standards.556 At the same time, concepts like politeness, friendship or social graces like being fashionable or elegant display considerable recalcitrance to assimilation by the practice of civility for a variety of reasons. For instance, whereas the rules of etiquette seem to culturally overlap with requirements of civility, there might be instances of polite behaviour whose triviality or arbitrariness is so pronounced that they cannot correspond to the instantiation of a civic character trait. Even more controversially, friendly relationships are such that many philosophers argue that accentuating their dependence on civic practice amounts to a severe misapprehension of the value of intimacy and the role that emotions play in this regard. That being said, I will abide by this use of civility and further associate it with the 556 John Rawls, Political Liberalism , New York: Columbia University Press, 1993, p. 224. 684 disposition of some act-types to be publicly evaluated as having thick value or disvalue (generous, courageous, cruel) whilst recognizing that it may not cover all the spectrum of practices involving the attribution of evaluative traits. The cost of its underinclusiveness can be offset, I believe, by the unity of its normative explanation. The idea is that there is something special about this underinclusive set of thick evaluations precisely because they trigger an egalitarian principle governing the way in which agents are expected to engage in the practice of value. With regard to the two remaining types of social practice, namely, the practice of playing a game and the practice of promising my attribution of dispositional traits to their function will be short-lived. This is to say that by the end of this section it will turn out that the dispositions I have provisionally associated with their function are not genuine, or in the relevant metaphysical jargon, finkish. This is not an exercise in futility, however, precisely because I aim to invoke the finkishness of the dispositions of ludicity (for games) and conducibility (for promising) as a more fine-grained explanation of the fact that both practices fail to trigger the generation of normative requirements. The concept of fink557 is standardly used by philosophers of science to facilitate the distinction between dispositions grounded in facts that hold independently of what stimulates their manifestations and merely apparent dispositions whose 557 See, David Lewis, ‘Finkish Dispositions’ in Philosophical Quarterly (1997), 47 (147): 143- 58. 685 stimulus conditions also serve as the conditions for an object’s acquiring or losing a disposition.558 Admittedly, the analogy between the cases of natural dispositions and non-natural dispositions should not be stretched beyond proportion. In this regard, it will make little sense to talk about stimulus conditions in the case of social dispositions like public evaluability (civility) or ludicity (games) precisely because the process by which public evaluability is manifested in acts of courage or generosity is not causal in any informative sense. A modest solution which I plan to apply is to replace talk of stimulus conditions with reference to the conditions that constitute (instead of stimulate) a particular manifestation. The idea is already familiar. We have already been acquainted with the way in which we describe facts about instances of conformity with legal duty (trust reaffirmation), generosity, fidelity or checkmate. Instead of saying that my contributing to charity stimulates a manifestation of public evaluability qua generosity we could say that the same act constitutes a particular manifestation of public evaluability, or equivalently, that the same act constitutes an act of generosity. 558 C.B. Martin provides a classical example of a finkishly grounded disposition. He invites us to think that an electrical wire ‘is connected to a machine, an electro-fink, which can provide itself with reliable information as to exactly when a wire connected to it is touched by a conductor. When such contact occurs the electro-fink reacts (instantaneously, we are supposing) by making the wire live for the duration of the contact. In the absence of contact the wire is dead. For example, at t, the wire is untouched by any conductor, at t2 a conductor touches it, at t3 it is untouched again. The wire is dead at t1, live at t2, and dead again at t3. In sum, the electro-fink ensures that the wire is live when and only when a conductor touches it [emphasis added]’ (in C.B. Martin, ‘Dispositions and Conditionals’in The Philosophical Quarterly (1994) 44: 1–8, at 2-3). 686 In our target domain of practice-instantiating activity, the dispositions I will associate with different types of agential or normative states of affairs are extrinsic in the sense that there is nothing about the essence of being an act of taking the first bite or the obligation to pay taxes or moving a piece diagonally or the use of a word sequence as in ‘I promise to A that I will φ’ that attaches to these the dispositional properties of being publicly evaluable as having thick value, enforceable, ludic or conducible respectively. The extrinsicality559 of these dispositions is the metaphysical counterpart of what is commonly known as the contingency of social practices or, equivalently, the idea that certain types of behavior that would be indifferent or unclassified in another context acquire a particular meaning or normative import provided that certain practice-establishing facts obtain. There is no doubt that the jargon I am introducing already looks too cryptic or technical to merit attention from the beginning. I ask for the reader’s patience as I am indulging in connections that seem far-fetched or undecipherable in the hope that by the end of this section I will have managed to show two things. Firstly, I aspire to demonstrate that the question of whether a social practice can be a triggering or derivative source of normative requirements depends on whether the disposition associated with it is finkish or not. In 559 For a very illuminating account of how extrinsic disposition work in the domain of pure metaphysics, see among others Jennifer McKitrick, ‘A Case for Extrinsic Dispositions’ in Australasian Journal of Philosophy (2003) 81 (2): 155-74. 687 particular I shall argue that the dispositions of enforceability (law) and public evaluability (civility) are genuine or non-finkish in the sense that the grounds of their acquisition or loss are not identical with the constitutive conditions of their manifestation. The critical step will be to argue that the manifestation-independent facts that ground those dispositions just are the facts that trigger or enable the independent principles that make the content of the practices of law and civility binding. Conversely, I shall argue that the dispositions of ludicity (games) and conducibility (promises) are finkish in the sense that the grounds of their acquisition just are the constitutive conditions of their manifestation. The normative upshot of this finding will be that there are no independent grounds capable of triggering the generation of normative requirements. In the case of games this conclusion will serve as an alternative confirmation of their lack of normative impact, whereas in the case of promises the same conclusion will be more impactful in the sense that it will lend support to the idea that the wrong related to instances of promise-breaking neither supervenes on the wrong of the consequences associated with promise-breaking nor on the wrong of violating a self-standing principle of interpersonal morality. What underlies this alternative approach part of which I have already applied to law as my primary source of interest is the idea that claims about the content of a practice cast in nomic language are made true by facts about the possession of particular kinds of dispositions by act-types or obligations (or rights). In other words, the idea is that nomic truths about 688 the rules or norms of a practice are not grounded in nomic facts but rather in dispositional facts. As I noted earlier, I do not intend to engage in a separate defense of the metaphysical implications of applying this idea to the practices with which I have chosen to contrast law. The reason in the case of games and promising is straightforward and easy; the dispositions I aim to associate with these practices will turn out to rest on finkish grounds which means that they are not genuine dispositions that can obtain independently of what we identify as their manifestations. The reason in the case of civility is more strategic. The economy of the discussion cannot permit such a long digression but this has not prevented me so far from giving a rather pithy preview of how the argument is supposed to roll on. In what remains I will disclose a few more bits and pieces of a unified analysis of the practice of thick evaluation in terms of a sui generis disposition of public evaluability in the hope that it will be possible to demonstrate the relevance of this underdeveloped hypothesis for showcasing that my alternative approach to legal normativity is not ad hoc or oblivious to the intricacies of a broader family of phenomena to which law belongs. To accomplish this I will use two criteria which I deem as crucially relevant for the purpose of figuring out how practices acquire normative leverage. The first criterion refers to the capacity of a practice to bestow upon practice-instancing actions an evaluative property. I will use the term ‘transmissive’ to refer to the fact that in some practices actions acquire an 689 evaluative trait simply in virtue of their instantiating the practice.560 My understanding of normative transmission is heavily premised on Michael Thompson’s way of explaining his ‘transfer or transparency principle’ according to which ‘a good practice makes the action falling under it good’.561 The second criterion can be formulated in terms of the question of whether an action acquires the disposition to instantiate a practice independently of or because of what triggers its instantiation. In the former case an action is really possessed of an (extrinsic) disposition to instantiate the practice in virtue of some social or institutional fact that takes precedence over triggering facts about one’s deciding to voluntarily commit, acquire membership of a practice or intend to act within a domain governed by a practice. In the latter case the disposition is finkish as there is nothing prior to or independent of a triggering fact that can explain why a particular action is an instance of this practice and not of another one or perhaps not a practice-instance at all. In what follows I will dwell a bit further on these two criteria before exploring how pairing them up can explain the normative discontinuity between the practices I have chosen to sample out. 560 On Thompson’s account practices operate as mediating elements between standards employed for the appraisal of a practice and the actions that count as their manifestations. 561 As Thompson explains, ‘the transparency claims contained in our two tendencies, roughly expressed, are respectively these: that a good practice makes the actions falling under it good; and that a rational disposition makes the actions manifesting it rational. The light that falls on either sort of thing is supposed to pass through it to the individual action that comes under it’ (Life and Action, supra note 24, p 167). 690 Even though talking about, say, acts of fidelity or acts of civility is a fairly intelligible way of describing the transparency of virtues realized by a practice to the practice’s instances, it is metaphysically inaccurate to say that practices can be transmissive by way of transmitting the normative force of the reasons for having the practice to the reasons for performing the acts falling under them. Particular acts of fidelity or civility are not means of achieving an end embodied by the practice as a whole but instantiations of an aspect of the good. Focusing on the practice instead of acts precisely reflects Philippa Foot’s worry with regard to the attribution of the virtue of justice that philosophers tend ‘to consider in isolation particular just acts’.562 Thompson tries to appease this worry by emphasizing that our attention ‘ought to pass from the typical individual act of fidelity to something that runs through them all, something that each of them manifests or instances or expresses, namely, a certain putative virtue. This, in our present case [that is, the practice of promise-keeping], is fidelity itself: a particular practical disposition, a hexis or habitus, a familiar practical ‘trait.’”563 To see the qualitative difference between holistic and atomic treatments of acts as the receiving end of normative transmission it is worth considering the possibility of there being a genuine contrast between 562 Philippa Foot, Virtues and Vices and Other Essays in Moral Philosophy, Berkeley: University of California Press, 1978, p. 129. 563 M. Thompson, Life and Action, supra note 24, p. 154. 691 aretaic—from practice-related values to practice-instantiating actions—and instrumental transmission from valuable ends to acts. The latter type of transmission is precisely about cases where normative force is transmitted by a valuable end to particular acts. What could serve as evidence in favor of this interpretation is that instances of instrumental transmission can always be translated into claims about reasons for action such that the fact that eating carrots is good for my health is a reason for me to buy some. By sharp contrast, the fact that keeping promises sustains a social institution which enhances co-operation and fairness in transactions among people is not a reason for me to perform any particular action. What makes φ-ing and not, say, ψ-ing favored by a reason is not the fact that being this particular act-type and not another serves or promotes the purpose of sustaining the benefits derived from promise-keeping. Rather it is the fact that I promised to φ—and not to ψ—that seems to figure somehow—that remains to be clarified in what follows—in an explanation of why φ-ing is required, and not ψ-ing.564 In the case of transmissive practices, a practice-instantiating action is not individuated as such by virtue of the fact that it can perform an instrumental role in achieving an end. Rather it is individuated as a practice-instantiating action by virtue of the fact that it partakes of the goodness of the practice. 564 Thompson chooses to explain the same phenomenon by naming the transmissive capacity of a practice a formal as opposed to action-guiding principle of action; see his Life and Action, supra note 24, p. 174. 692 Moving to the second criterion of practice individuation one may reasonably wonder why this peculiar distinction is of any relevance in the case of practice-instancing actions. As I will try to show, by appealing to this dichotomy we can make a plausible case about what makes it the case that some practices while not others essentially figure in the normative explanation of infelicitous instances of practice-deviant behavior. In the case of actions finkishly disposed to instantiate a practice, it will be impossible to appeal to the grounds of an act’s disposition to instantiate a practice in order to explain the distinctive wrongness of failing to act in accordance with the practice. The reason is that in the case of finkish dispositions there are no manifestation-independent facts that ground the continuous existence of the disposition irrespective of whether it manifests itself or not. What stimulates, or in our case, constitutes the manifestation of a disposition just is what grounds the acquisition of that disposition! Consequently, there will be no manifestation-independent ground capable of triggering a principle that can explain why one’s failure to instantiate the practice is bad or wrong. In other words, there will be no manifestation- independent ground that figures essentially in the normative explanation of the wrongness or badness of failing to instantiate a practice. On such occasions appeal to a practice-independent565 normative source is necessary in order to provide a normative explanation of the wrongness of failing to 565 In the present context a normative source is practice-independent in the sense that its ability to generate particular normative requirements holds independently of what grounds the practice itself. In other words, the finkish grounds of the practice are too circumstantial to be capable of triggering a principle of rightness or goodness. 693 instantiate the practice despite proper circumstances. By sharp contrast, in the case of actions genuinely disposed to instantiate a practice the grounds of the relevant disposition will figure essentially in the explanation of why a particular action counts as being in violation of what the practice dictates in the specified sense that these same grounds enable a principle to do the necessary explanatory work. By taking these two criteria as a yardstick for classifying exemplary cases of practice-governed activity, I will attempt to map the terrain by suggesting that the four case practices (law, civility, games, promises) correspond to four distinct combinations of the features conferred by these criteria. My hope is that I will be able to demonstrate that the possible combinations of dispositional finkishness/genuineness with aretaic transmissiveness/non-transmissiveness can provide a fine-grained explanation of two things. The first thing regards the distinction between practices that are derivatively normative and practices that fail to figure essentially in the triggering of a normative source. This distinction will correspond to the divide between dispositional genuineness and dispositional finskishness respectively. The second thing regards the way in which facts about what a practice requires, permits or values are normatively salient. We may recall that I am using the notion of normative salience in the technical sense that a fact can be normatively salient either by way of being response-guiding or by being response-constraining. In this regard this normative distinction will correspond to the divide between 694 aretaic transmission and its absence. An important caveat in this pattern regards the pair of a finkish disposition and value transmission. This will be the case of promising which, as already mentioned, I intend to classify as non-normative in the sense that it fails to figure essentially in the explanation of the rightness or wrongness of acts of promise-keeping and promise-breaking respectively. One may reasonably ask how it is possible to divest the practice of promising of any normative role whilst accepting that the practice has a value that is transmissible to the acts that instantiate it. The explanation is that the relevant value is extrinsic to the practice in the sense that promissory utterances are just one way of realizing that value. At this preliminary point I will briefly forestall anticipation of how exactly I prefer to define the dispositions associated with actions taking place within the context of each practice. Up to this point I have been vaguely referring to four uncannily technical terms (enforceability, public evaluability, ludicity and conducibility) by generally talking about the disposition to instantiate a practice. Going a step further I will try to provide a more concise blueprint for how I intend to use this new jargon. More precisely, (i) by ludicity I will refer to the disposition of moves or, more generally, performances prescribed within the context of a game to make their performers embody a ludic role, (ii) by public evaluability I will refer to the disposition of acts prescribed by a code of conduct, a tradition or civic culture to be publicly evaluated as bearing a particular kind of thick value, (iii) by conducibility I will refer to the disposition of promissory 695 utterances to authorize their addressee to externally guide the behaviour of the promisor and (iv) by enforceability I will refer to the disposition of obligations, privileges, powers or immunities to validate the trust of members of a political community that a particular joint requirement obtains. In light of these canonical definitions I intend to proceed a step further by bringing these dispositions into a taxonomical relation of some sort. For this purpose I will use the two previously described binary criteria of genuineness/finkishness and aretaic transmissiveness/non-transmissiveness. The resulting pairs are schematically described as the four possible combinations of (non)transmission and (non)finkishness. More precisely, this alternative mapping will deliver the following taxonomical correlations: (i) in the case of law the disposition of enforceability is genuine (non-finkish) and non-transmissive,566 (ii) in the case of civility the disposition of being publicly evaluable as being of thick value is genuine and transmissive, (iii) in the case of games, the disposition of ludicity is finkish and non- transmissive, and (iv) in the case of promising, the disposition of conducibility is finkish and transmissive. These taxonomical pairs will prove their utility in two ways. Firstly, they can help us settle the question of what determines whether and how a practice is derivatively normative. More 566 For brevity I will be attributing the property of aretaic transmission to the dispositions with which I have associated each case practice even though it would be more precise to say that the transmission takes place between the practice-independent principle or normative source triggered by the grounds of the disposition and the actions that conform to this principle. 696 precisely, the conclusion will be that only practices associated with genuine (non-finkish) dispositions are derivatively normative in the sense that the grounds of the relevant disposition trigger the principles that make the content of these practices binding. Moreover, among the class of derivatively normative practices, the content of a transmissive practice (civility) is binding by virtue of being action-guiding, whereas the content of a non-transmissive practice (law) is binding by virtue of being action- constraining. Secondly, the same taxonomical correlations can also alert us of the limits of locating informative structural similarities between different practices. This tendency is particularly evident in the case of law—which of course is the main focus in this analysis—as it is not uncommon for legal philosophers to try to understand law either by associating its function with the rule-based structure of games (e.g. chess) or by likening the generation of legal norms to the generation of promissory obligations by promissory utterances. The upshot of this categorization can be more than illuminating for our understanding of the normative nature of legal practice as it will make it easier to highlight which general aspects of the kind ‘practice’ are applicable to law and why. What I aim to pursue in the remainder of this section is a summary of how the pattern of co-variation between the nature of dispositional grounds (genuine or finkish) and the possibility of value transmission can illuminate another pattern of co-variation between my four exemplary practices and the properties of being derivatively normative and being action-guiding or 697 action-constraining respectively. To reiterate a previous point, my appeal to these two binary criteria is meant to facilitate our understanding of whether (derivatively normative or normatively inert) and how (action-guidance or action-constraint) practices can essentially figure in the generation of normative requirements. They are not meant to pave the way for embarking on a metaphysical quest. Granted that I do not aspire to offer a global perspective on the necessary and sufficient conditions for being a practice of some kind, I will confine my analysis to a rather specific aspect of practice-governed activities. This is the question of whether and how practices may acquire relevance for what matters to us from a normative point of view. In what follows I will complete this summary in two contradistinctive steps. In a first step I will locate a source of affinity between games and civility and between law and promising respectively. In a second step I will proceed by gradually uncovering the mechanics of associating each practice with a pair of the two binary criteria. When I find myself in a situation where my actions are meant to be moves in a game, say, of chess my actually performing a particular move counts as —or in a metaphysically more accurate language, constitutes—my performing (a part of) the role of a chess player. Similarly, when I sit at an official dinner in an English country house and I wait for the host to take the first bite my behaviour counts as my being polite. In both cases, the action becomes attributable to the agent via the assumption of a role that either carries no intrinsic evaluative weight—as in the case of being a chess player 698 —or embodies a thick evaluative property—as when I get to count as being polite according to a particular code of conduct. Again, the similarity of these two cases should not obfuscate their critical difference as in the case of chess my choosing not to assume or stop performing the role of the chess player entails no blameworthiness at least in light of the standards of the practice of chess. The only upshot is that I cease to count as a chess player period without any entailment as to whether I am morally blameworthy for violating or refusing to subscribe to the rules of chess. By sharp contrast, my choosing to ignore my host and be the first one to take a bite implies lack of politeness and I can be harshly criticized for behaving in such a manner. What is relevantly common in both cases is that what actually counts as an instance of chess-playing or an instance of civility is the actual performance of a role. To put it more graphically, instances of games and civility are about who you are publicly taken to be and not about what you do. In the case of games and civility what becomes salient—or at least what I hope to have made salient—is that despite the fact that all practices are manifested through actual doings and sayings, what really makes chess- playing or respecting the rules of etiquette a practice persisting through time is the actual performance of roles—the role of being a player and the role of embodying a particular thick evaluative property. Particular actions are virtually mirroring what kind of person you count as being in a particular context whether this has evaluative connotations or not.567 567 What is also interestingly different between these two superficially kindred dispositions is that only the latter is what metaphysicians call a ‘multi-track’ disposition, that is, a 699 On the other side of the spectrum, we have instances of practice- governed activity wherein the attention falls on what is being done rather than on what role one is performing while doing something. Law and promises are not in the business of ascribing properties to agents as markers of their instantiating the respective practices. For a host of reasons, actions here carry more weight than in the previous two cases. That is to say, it is not that fulfilling a promise or complying with the law is just a vehicle of shorthand for satisfying a standard of excellence. To the contrary, it seems that both law and the practice of promising accord special status to what is to be done. When I promise to visit you at the hospital what is subject to evaluation is not how well I perform my role as a promisor but whether and how I choose to fulfil my promise. If someone is acquiring a new role in this interaction is rather the promisee in the sense that the promisor goes beyond a mere declaration of an intention to act by making an utterance that serves to transfer his own moral power over the action to the recipient of the promise.568 It is up to the promisee to absolve her from her promissory duty as well as to ascertain whether what is actually done really corresponds to the content of one’s promise. This transfer of the normative power to be in disposition with more than one distinct manifestations. By multi-track in this case I mean to say that the disposition of public evaluability can be manifested by a plurality of positive and negative evaluative traits. 568 For supporters of the ‘transfer account’ of promissory obligations see Seana Shiffrin, ‘Promising, Intimate Relationships, and Conventionalism’ in Philosophical Review (2008) 117(4): 481-524. 700 deliberative control of one’s choice to act is a formidable means of what we may call external guidance in the sense that there is a reason for the promisor to perform an action that, literally speaking, is not owned by her but by the promisee. By virtue of the making of a valid promise the promisee has a claim against the promisor that the promise be actually fulfilled.569 Law also is the sort of thing that governs actions rather than the performance of roles. On the model of enforceability agents are not being externally guided by an authority with a view to conforming to their legal duties or exercising their rights or powers. Rather they are normatively constrained by the (wide-scope) requirement that manifestations of enforceability obtain. As we may recall from the first part, to say that an obligation to φ is enforceable in S is to say that this obligation 570 to φ is disposed to validate the trust of members of S that φ-ing is supported by reasons they could all share. In this regard there are two ways of “stimulating” manifestations of enforceability understood as trust- validability. One stimulus, or more preferably, constitutive condition is to ψ which will be a way of realizing the act-type of φ-ing. This act-token 569 To recall the distinction between something’s being a reason for someone to do something and someone’s having a reason to do something, we can assume that the practice-instantiating action of keeping a promise can be an action done for various sorts of reasons, that is, also for reasons that are not related to the fact that one has made a promise. 570 For brevity I will omit re-descriptions of enforceable obligations into enforceable duties to do one’s part of a joint requirement but it should be clear by now that this is the complete idea. 701 “stimulates”, or more correctly, constitutes an act of reaffirming trust that φ-ing is supported by agent-neutral reasons. Another constitutive condition is for system S itself to see to it that A φ’s or that A incurs a sanction for not φ-ing.571 These event-tokens constitute acts of restoring trust that φ-ing is supported by agent-neutral reasons. As a result, what instantiates the practice of law is not a role performance but the upholding of an intrinsically valuable type of trust.572 Irrespective of what we believe or aim at, these particular act-tokens will count as upholding our trust in the agent-neutral justification of our duties and rights. With this handy distinction between role and agential manifestations we may proceed to explore whether and how the dispositions corresponding to these manifestations can exist independently of what triggers the manifestations themselves. The first and perhaps less problematic candidate is the disposition of ludicity which I have associated with the practice of playing a game. My suggestion is that ludic practices cannot be derivatively normative because the grounds of ludicity are not ontologically distinct 571 By employing various methods of enforcement law is meant to make it the case that what is violated or illegally restricted is upheld by what are taken to be remedial or punitive measures. Law can achieve the same result by either occasionally providing incentives for scofflaws to refrain from illegal activity or, as it always does, by making it the case that irrespective of whether someone feels the pressure of coercive measures she is not in charge of whether she can ultimately avoid performing an enforceable obligation. 572 Arthur Ripstein makes a similar point when he remarks that ‘the enforcement of a right is not the institutional expression of blame, or an attempt to guide conduct prospectively. Either of those would treat legality as a tool. Instead it is simply the upholding of the underlying right’ (in Arthur Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy, Cambridge MA: Harvard University Press, 2009, p. 378). 702 from what constitutes manifestations of ludicity. In other words, intentional moves of pieces on a chessboard do not only (cumulatively) constitute the role of acting as a chess player but also explain the fact that a particular type of move has acquired the disposition of ludicity. As a premise, we can safely assume that one’s decision to play chess is what actually triggers one’s ensuing performance qua chess player. Irrespective of whether there is a time lapse between the decision-making and the actual playing of the game, the explanation of what makes a particular move an instance of chess-playing and not, say, an instance of creating space to rest my ankle upon the chessboard must include reference to the fact that I intend to play chess. Just because my actual movement falls under the scope of a chess rule does not entail that I am a chess player. What determines whether this is the case or not is the fact that I intend to play chess by performing some moves on the chessboard. Given that dispositions are ‘finkish’ in the sense that the conditions for an object's acquiring or losing a disposition D might be the same as D's stimulus conditions, the formal translation of what I have just described as an instance of chess playing is that the disposition of a set of moves to render someone a player of a particular game does not obtain independently of its actual manifestation as someone’s making particular moves with the intention to play a particular game. This formal analysis has the following implication: the possession by a set of moves or performances of a ludic disposition necessarily coincides with the manifestation of the 703 relevant disposition. To illustrate the emerging contrast, whereas a glass is fragile no matter how long it remains unbroken, nothing is disposed to instantiate a game before the game actually starts! The initial oddity of the claim that moves in a game are finkishly disposed to instantiate it can be explained away as soon as we associate this awkward conclusion with what is commonly said when we remind ourselves that “it’s just a game” whenever tension or controversy during a game erupts. The metaphysical translation of this common saying would be that neither before we set out to intentionally play a game nor after we finish it or decide to stop playing is there a worldly fact that can explain the disposition of a set of moves or performances to transform us into players; whatever happens in a game of chess stays in that very same game of chess.573 The normative upshot of these remarks is that there is no such thing as game reasons in the qualified the sense that a fact about the practice of playing a game triggers a normative reason to follow the rules of a game. There may well be a reason to decide to play a game or even a reason to play by the rules of a game but the source of these reasons is prudence rather than a normative source whose capacity to generate normative reasons is essentially enabled by the practice. The fact that there can be no principled distinction between the intentional move that triggers the instantiation of a game and the facts that ground the disposition of that 573 This remark may also corroborate the view that ludic practices are mere regularities in the sense that they are nothing beyond the infinite set of their instances. 704 particular set of moves to instantiate a game can explain why ludic practices cannot essentially figure in the explanation of why there is a normative reason to make or not make a particular move. If all that there is, is our intention to play a game it is only that intention and nothing that holds independently of that intention that figures essentially in the explanation of why prudence requires that we follow the rules of the game. In other words, my intention to play a game triggers the prudential requirement that I take the means to realize my end. In this case the means happens to be a set of consecutive acts of following the rules of the game. The idea that the practice of, say, chess is not derivatively normative in any informative sense consists in the fact that there is nothing about the practice itself to which prudence as an independent normative source is essentially sensitive. All that is needed for prudence to do the work is for someone to have the intention to play a game. This is an individual mental state rather than a fact about a putative general acceptance of the rules of chess. The latter even if it could exist cannot trigger a prudential requirement enjoining me to instantiate the practice by following its rules.574 574 A hypothetical scenario might feature an actual agreement between participants in a game that they will abide by the rules of the game. In that case besides a prudential reason to follow the rules I may also have a moral reason to abide by an agreement. At any rate the moral principle of ‘pacta sunt servanda’ will be triggered by an actual (implicit or explicit) agreement that we shall follow the rules of the game rather than by the conventional acceptance that these are the rules of the game. Only the latter mental state is constitutively involved in the grounding of the game’s constitutive rules but whereas it is relevant for the obtaining of these rules it is not also relevant for what could potentially 705 Moving to the practice of civility I should once again note that my use of the term ‘civility’ is likely to be regarded by many as too idiosyncratic or even ad hoc. The reason is that the usage I favour implies a rather strong statement about the relation between civility and thick evaluation. As I said, this is a fair point to which it would be unappealing to respond by adducing countervailing platitudes about the relation of civic virtues to thick evaluative properties. Perhaps I should content myself with the possibility of having to revise my choice of terms and talk instead about the practice of thick evaluation without loading my exposition with dubious associations. That being said I would invite the reader to consider the possibility that this association has informative value especially because it locates the link between civility and thick evaluation in the public dimension of praising or disapproving social conduct. In light of these concessive remarks I would like to inject some more content into the idea that the practice of civility is associated with a genuine and transmissive disposition of public evaluability. A first point is that this association serves to provide a more fine-grained explanation of why the practice of civility is derivatively normative in the sense that facts about this practice figure essentially in judgments about the goodness or badness of particular tokens of action. This possibility rests on the hypothesis that the grounds of the disposition of public evaluability hold independently of what constitutes its manifestations and, consequently, that these manifestation-independent grounds trigger a principle of civic action. make these rules binding. 706 What could then possibly ground the fact that some act-types are disposed to be publicly evaluated as bearing thick value or disvalue like being courageous, generous, cruel or selfish? This is a question about the nature of non-dispositional or categorical facts that must obtain in order for a disposition to persist irrespective of its occasional manifestations. Let us take the example of the disposition of (the act-type of) benefiting others without expecting anything in return to be publicly evaluated as being generous. First off, it should be noted that holding this description fixed is no evidence in favour of disentangling the descriptive component of the concept of being generous from its thin evaluative component of being good in this respect. A typical feature of dispositions is that it is possible to account for their failure to manifest by appeal to events that operate as obstacles to their actual manifestation.575 Keeping this point in mind we might say that the fact that benefiting others without expecting anything in return is disposed to be publicly evaluated as being generous is grounded in the fact that there is a practice of approving benefiting others without expecting anything in return and that this practice warrants treating this approval as a reason for action. The idea then is that it is a fact about the warranted treatment of a particular pattern of approval (or disapproval) as a reason to act in the approved way (or a reason not to act in the disapproved way) that grounds the continuous existence of the disposition 575 I have briefly argued against the possibility of disentanglement earlier in this part on independent grounds. More precisely, I argued that the impossibility of disentanglement regards the relation between descriptions of conduct and the counterfactual evaluation of agents rather than actions. 707 of a particular act-type to be publicly evaluated as having a particular thick value or disvalue. On pain of reducing public evaluation to facts about what people in a community like or dislike it is crucial to insist that public evaluability is not grounded in the fact that some people approve of something as being courageous or disapprove of something as being cruel but rather in the fact that treating this approval or disapproval as a reason for action or omission respectively is warranted on grounds that hold independently of this approval or disapproval. It is of course a matter of substantive moral theory to determine the content of the principle that explains why a given pattern of approval or disapproval merits the label of warranting or calling for our motivation to act accordingly. This is not the place to ponder about this question but we can already extrapolate the pattern of this principle from the very concept of what it is be an independent ground of a disposition. It must be a fact that is not reducible or identical with the fact that triggers manifestations of public evaluability. In other words, the principle must exclude finkish grounds from its scope. In this regard a principle capable of justifying the treatment of a given pattern of approval or disapproval as a reason for action or omission respectively must definitely include the qualification that these acts of approval or disapproval are not identical with the acts that are taken to constitute an act of courage or an act of cruelty. In our given example, the idea would be that our treating the approval of benefiting others without expecting anything in return as a reason for action would not be 708 warranted if the relevant approval simply consisted in similar acts of benefiting others. This is to say that a genuine ground cannot consist in a regularity pattern such that I have a reason to benefit others just because others do the same. Acts of approval or disapproval must be more than regular repetitions of acts of benefiting others or omissions to torture others. Just because others express their approval or disapproval merely by doing or avoiding things we are not warranted to treat facts about other people’s actions or omissions as reasons to act or omit respectively. This already covers half the distance to our destination. For instance, in light of the exclusion of finkish warrants we might say that a particular practice of approval or disapproval can warrant our motivation if it consists in a public articulation of reasons for praising or condemning particular behaviours that can withstand rational scrutiny. This line of reasoning eventually ends up to affirming that the disposition of public evaluability can be genuine. It can be genuine because what grounds it is not identical to what constitutes acts of courtesy or courage or omissions of cruelty or exploitation. The ground of this disposition is a fact about the warrantedness of our treatment of facts about the approval of actions as courageous or about the disapproval of actions as cruel as reasons for action or omission respectively. Conversely, what triggers this disposition are ordinary tokens of action that in the context of the practice are taken to constitute instances of courtesy, generosity or cruelty. Provided that the practice of civility understood as the practice of approving 709 or disapproving types of conduct by appeal to facts about thick value is associated with the genuine disposition of public evaluability it becomes easier to grasp why this practice can be normative in a derivative sense. The fact that for some attitude-independent reasons a practice of thick evaluation warrantedly invites us to treat patterns of approval or disapproval as reasons for action or omission respectively is a normative fact about the fittingness of being motivated by particular facts. As we already noted this fact is further grounded in that fact that these patterns of approval or disapproval emerge out of a public process of proffering reasons that can justify the association of particular types of behaviour with thick evaluative traits. What is crucially important is that this fact about the fittingness of being so motivated can also perform a second role besides the role of grounding the disposition of public evaluability. This is the role of triggering a practice-independent principle that can ground particular normative requirements associated with the fact that a particular act-type is disposed to be publicly evaluated as being courageous. The principle I have in mind could be stated as follows: Principle of Civic Action: If an act-type Φ is disposed to be publicly evaluated as having thick value or disvalue in conditions C, there is a pro tanto reason to Φ or not to Φ respectively On pain of vicious circularity, this principle does not have the same content with the principle about what makes our motivation to act for civic reasons 710 warranted. The latter is a principle about what makes actions done for civic reasons morally worthy, whereas the former principle is strictly a principle of action to the effect that a particular type of conduct is called for irrespective of whether an agent actually treats the disposition of this conduct to be publicly evaluated as having thick value as a reason for action. This is precisely the pattern predicted by my association of normative practices like law and civility with constitutive impact. There can be a benign, so to speak, gap between the fact that serves as a standard for evaluating an agent as being courageous or generous and the fact that explains her actual conduct. All that is needed is that the agent could treat the fact that Φ is disposed to be publicly evaluated as having thick value as a reason for action and this condition is met by the fact that on some attitude-independent grounds treating this fact as a reason for action is warranted. The resulting picture fits nicely with the preceding description of what it is for a practice to be derivatively normative. The idea has been that facts about the practice must essentially figure in the explanation of why there is a reason to act in a certain way. In the case at hand this is evidenced by the fact that the principle of civic action cannot produce thick- value-based reasons for action unless an aspect of the practice of civility becomes relevant for warranting our treatment of dispositional facts about thick value as reasons for action. Absent a practice of civility there would be no available public standard that could settle the question of how to carve the spectrum of thick value at its joints. 711 In the case of promise-making we may begin by dwelling a bit more on my suggestion to associate the practice of promising with the disposition of promissory utterances to externally guide the conduct of the promisor (conducibility). This association is motivated by a particular view on the nature of promising most notably defended by legal theorists like Seanna Shiffrin and moral philosophers like David Owens.576 On Shiffrin’s pithy definition ‘a promise is a voluntary commitment to perform (or to omit) an action the promisor has the authority to perform, a commitment qualified (sometimes explicitly) by apt conditions of performance, that works by transferring some form of the promisor’s right to decide whether or not to perform that action to the promise [emphasis added]. In light of this transfer, the promise has a right to expect (and often to demand) performance and has the concomitant power to use her transferred power or decision to waive or excuse the promisor’s obligation of performance.’577 This is obviously a substantive position about the nature of promises hailing from a broadly natural law tradition of thought that invokes the concept of a normative power in order to explain how promisors can obligate themselves directly by virtue of the own normative power of self-commitment rather than by virtue of a convention or expectation-producing mechanism. Shiffrin’s account goes a step further by taking promises to be tools for 576 See especially D. Owens, ‘A Simple Theory of Promising’ in Philosophical Review (2006) 115 (1):51–77, at 71-5. 577 S. Shiffrin, ' Is a Contract a Promise?’ in Andrei Marmor (ed.), The Routledge Companion to Philosophy of Law, New York: Routledge, 2012, pp. 241-58, at 242. 712 enabling a change in the content of the relevant power by way of changing the holder of that power. In this regard, by promising the promisor relinquishes and transfers578 his power to change his mind about acting on a commitment to the promisee who now becomes the holder of the power to demand, waive or excuse the promisor’s obligation of performance. The promisee’s newly acquired power purports to become the source of the external guidance of the promisor’s future conduct by way of demanding the promisor’s performance or by waiving or excusing the promisor’s obligation to performance. A preliminary question therefore is whether my choice of associating promissory practices with the disposition of conducibility is explanatorily upstream of a substantive commitment to a metaphysical account of promises as means for transferring normative powers. In plain honesty it would be naïve to deny this correlation. Obviously the disposition of a promissory utterance to externally guide the promisor’s conduct is closely related to the fact that on the ‘transfer of power’ view the promisee has acquired normative control over the promisor’s future conduct. That being 578 As Shiffrin notes, ‘if promises are conceived as transfers of decision-making power…, then a promisee may still legitimately feel wronged if a promisor pays him money while breaking his promise. The promisee may feel as though a decision that was his to make, namely whether to require or to waive performance, has been wrested from him without consultation; the promisor unilaterally treating payment as an unexceptionally satisfactory alternative pays no heed to the disrespect done to the distribution of decision-making authority established by the promise’ (ibid, p. 243). 713 said I would dare to suggest that it is the fact that the disposition of conducibility will turn out to be finkish that lends support to the view that the normativity of promising is reducible to the normativity of having a certain practical authority over others rather than vice versa. The idea is that precisely because promissory utterances are not genuinely disposed to be an independent, practice-based source of external (normative) guidance, this task should be carried over from finkishly conducible promissory utterances to genuinely powerful agents. In other words, my choice to associate the practice of promising with the disposition of conducibility seems to entail rather than follow from Shiffrin’s theory. To see how this works it is imperative to clarify the way in which conducibility is supposed to be finkish. In the service of signposting let me repeat that to say that a disposition is finkish is to say that the grounds of its acquisition or persistence are identical or reducible to what triggers its manifestation. As one may easily guess the only manifestations we can associate with this particular disposition are instances of externally guided conduct. By externally guided conduct I mean actions that are individuated by reference to the fact that someone other than the promisor is in normative control of their performance.579 Irrespective of whether the 579 What is interestingly unique about this type of guidance is that it is not necessary that a promisor take herself to be guided by the fact that the promisee is in virtual ‘possession’ of her action. What is necessary for a promisor to be subject to external guidance is that the promisee is empowered to request performance without having to appeal to further reasons beyond the fact that a promise has been validly made. As Seana Shiffrin astutely remarks, ‘[p]romises are, interestingly, conversation-stoppers. So much so that if A were to 714 promisor does not treat the fact that she has made a valid promise as a reason to fulfill her promise her particular act of promise-keeping will count as being externally guided so long as a promissory utterance has taken place. This is precisely the sense in which the fact that I have uttered the promissory statement580 that I will φ enables my φ-ing to constitute an externally guided action, or equivalently, to constitute a manifestation of conducibility.581 At the same time, however, the fact that I have promised to φ suffices to make it the case that my promissory utterance is disposed to persist with reasons in the face of B’s sincere promise, it would represent a certain insensitivity or thickness, even rudeness’ (see S. Shiffrin, ‘Promising, Intimate Relationships, and Conventionalism’ in The Philosophical Review, (2008) 117 (4): 481-524, at 506. 580 Promises depend on the ability to communicate, but, as Scanlon has argued, they may not necessarily depend on the parties’ sharing a common language. A commitment of some brute sort may be communicated extralinguistically, albeit without the nuances accessible through a common language (Scanlon, What We Owe to Each Other, supra note 13, pp. 296–7). Further, what matters for the issue at hand is where the contingency enters. While the details and contents of any particular language may be conventional, the impetus, ability to, and need for communication are not conventional for rational, moral agents, at least for those who are autonomous individuals with limited epistemic capacities. 581 Thompson alludes to the finkishness of promising by remarking that ‘[a]n agent X’s doing A for another agent Y is an act of fidelity where we can affirm, in a certain familiar sense, that X did A for Y because she promised Y she would—that is, ‘precisely because’ or ‘just because’ she promised this. We distinguish such acts of promise-keeping from those in which, as we say, an ‘ulterior motive’ is at work’ (see Thompson, Life and Action, supra note 24, p. 151). This is not meant to suggest that if I keep my promise not because I promised but because I want to endear the recipient of my promise my act of promise- keeping does not count as being externally guided; quite the opposite, my act manifests conducibility but what enables an ordinary act to constitute an instance of external guidance is not the fact that I want to endear my friend but the fact that I promised to φ. So, only the fact that I promised to φ can figure in a constitutive explanation of why my φ- ing is a manifestation of conducibility and not, say, an act of beneficence. 715 externally guide my conduct. The fact about my utterance purports to operate also as a ground of the relevant disposition. As it turns out, one and the same fact about an utterance token serves both as a constitutive condition of my act’s counting as a manifestation of conducibility or external guidance and as a quasi-ground of my utterance’s disposition to externally guide my future behavior. What makes then the disposition of conducibility finkish is precisely the fact that the disposition itself does not exist prior to the “stimulus” condition, namely, the making of a valid promise. This collapse is all what we need in order to explain why the practice of promising as such cannot figure essentially in the normative explanation of why breaking a promise wrongs the promisee582 and, consequently, of why one has a promissory obligation to act as promised. The idea is that there are no distinctly promissory reasons because it is not the practice-related fact that a promissory utterance is represented by the practice as constituting a promissory obligation but the atomic fact that I have made a promise that triggers the transfer of my power to change my mind about my 582 What is informatively different in the case of promising is that conducibility can only be manifested through acts of promise-keeping, but not in acts of promise-breaking. What I mean to say by this is that in order to account for instances of failing to act on one’s promise, or keeping it only when it strikes me as useful or keeps it come what may—that is, in ultra-tight corners as when I act on a promise to kill you in order to relieve you of your chronic pain—one must invoke normative facts either about the promisor’s failure to respect the promisee’s practical authority or (in the case of ultra-tight corners) about the promise’s normative failure to enable a transfer of power from the promisor to the promisee. 716 action to the recipient of my promise. The former practice-related fact is a constitutive rule about the relation between a promissory utterance and a promissory duty, whereas the latter fact is a fact about the exercise of my will to commit myself vis-à-vis another person. In other words, what triggers a promissory obligation is the fact that my promissory utterance has changed the normative landscape by transferring the normative control of my action to the recipient rather than the fact that by the lights of the practice of promising a promissory utterance constitutes a promissory obligation. The relevant trigger is not a practice-fact about the existence of a constitutive rule but a normative fact about the way in which the moral situation is altered by virtue of what I say. In this regard the wrongness of breaking a promise cannot be explained583 by the constitutive rule that a promissory utterance constitutes a promissory obligation but only by appeal to the practice-independent fact that by breaking a promise I fail to respect the promisee’s practical authority over my performance. On this account it is not the practice of associating promissory utterances with promissory duties that essentially enables the creation of promissory obligations but the exercise of our intrinsic, practice-independent power to temporarily transfer an aspect of our authority to another person. 583 Michael Thompson describes such instances as instances of ‘private failure’ in the sense that “the various forms of infidelity, considered as dispositions or vices, really are private attainments and private sources of action. They are local impediments to the apt instancing of a practice that the agent nevertheless bears and that is instanced minimally in his possession of the concept of a promise and in the individual promises he forms. It is just that there are other things going on with him’ (see Thompson, Life and Action, supra note 24, p. 210). 717 As anticipated, this lengthy, cross-testing of the “normative stamina” of four exemplary practices culminates in a diagnostic of the capacity of legal practices to trigger distinctly “legal” normative requirements. This task is partly easier for the reason that in the first part of this thesis I have gone at lengths to try to explain the nature of the disposition of enforceability. The basic aspect of this previous discussion that is of interest in the current context regards the non-finkishness of enforceability. We may recall, in this respect, that what grounds facts about the obtaining of enforceable obligations or rights are facts about the way in which aspects of a legal practice warrant trust that these obligations or rights are supported by agent-neutral reasons, namely, reasons that any reasonable agent could have or could not argue against treating them as reasons. More precisely, I suggested that what grounds or rationally explains the fact that these facts about the invitation of our trust ground the obtaining of enforceable obligations and rights is a further normative fact which I had tried to condense into what I called the Principle of Legal Relevance. According to that principle: Principle of Legal Relevance : Enforceability is essentially such that if (1) an/some aspect(s) A of the activities of participants in a collective decision-making practice purport(s) to invite our trust qua members of a political community C that we could all share the same reason to jointly Φ AND if (2) A does not merely collapse into performing actual tokens of Φ- ing, or coercively responding to omissions to Φ (the primary practices of 718 doing what others do and sanctioning deviations therefrom) , or consecutively issuing particular orders to Φ (legal particularism), or attaching normative effects to past instances of Φ-ing (ex post facto law), AND if (3) A could be informed by public reasons, the joint requirement to φ is enforceable. By the lights of this principle, if the invitation of the relevant trust rests on finkish conditions it fails to provide the necessary warrant for endowing a particular obligation or right with the property of being enforceable. What the Principle of Legal Relevance does is to provide the normative assurance that not just any official activity can qualify as warrantedly inviting our trust and, consequently, only qualified aspects of this activity can figure in the grounds of obligations and rights that are genuinely disposed to validate our trust that our actions are supported by reasons we could all share. Granted that only qualified aspects of the sayings and doings of legal officials can invite the relevant type of trust, a further question is whether the existence of genuinely enforceable legal content has distinct normative import. In other words, we may ask whether the dispositional fact that an obligation or right is genuinely disposed to validate our trust in the agent- neutral reasons that inform our joint activity is normatively relevant in the same way that the dispositional fact that an act-type is genuinely disposed to be publicly evaluated as, say, being courageous provides a reason for action. The crucial step features a simple thought. It is not enough that a disposition exists if it is not also manifested. Whereas in the physical world 719 the fact that genuine dispositions may remain dormant either due to lack of stimuli or because they are blocked by various maskers or antidotes, as the jargon goes,584 is not wrongful in any informative sense, the situation can be interestingly reversed in the case of non-natural, social dispositions like the disposition of enforceability. The idea is that the disposition of enforceability should be manifested, or in other words, it ought to be the case that the trust invited by the practice of law is validated. In the last chapter I will expand further on the grounds of this type of requirement but in the meantime it would suffice to articulate it in a principle-like form. I will call this principle the Principle of Trust Validation. This principle states that: Principle of Trust Validation: If an obligation to Φ is genuinely disposed to validate the trust of members of a political community C that Φ-ing is supported by reasons that all could share it ought to be the case that this trust is validated. What this principle actually enjoins is that the enforceability of obligations and rights be manifested. It does not specify how enforceability should be manifested. In other words, it does not mandate which of the available ways of manifesting enforceability is called for in a particular 584 Alexander Bird, ‘Dispositions and Antidotes’ in The Philosophical Quarterly (1998) 48 (191): 227-43 and Mark Johnston, ‘How to Speak of the Colors’ in Philosophical Studies (1992) 68 (3): 221–263. Another case of dispositional “infelicity” involves an interfering factor in virtue of which x mimics the manifestation of disposition D although it does not possess D. In the last section of this chapter I will develop an account of the rule of law as a cluster principle prohibiting the masking or mimicking of the disposition of enforceability. 720 circumstance. This result is consonant with the fact that legal practices are non-transmissive in the technical sense that the practice of law is not associated with a general standard of excellence that can be transmitted from the practice to the actions instantiating it.585 To illustrate my point we may recall that in the case of civility the thick value dispositionally possessed by an act-type is transmitted to the act-tokens that realize the act-type (acts of courage, generosity or cruelty) in virtue of the fact that the fact of this possession is a reason to perform these particular actions in a certain context. By sharp contrast, in the case of law the fact that an obligation is disposed to validate trust does not provide a direct normative reason to realize this validation by fulfilling the obligation but a wide-scope requirement enjoining the validation of trust, or equivalently, the manifestation of the obligation’s enforceability . But it remains an open normative question which type of manifestation is the contextually suitable one. Besides reaffirmations of trust through acts of conformity the same trust can also be validated by acts of coercive enforcement that serve to restore trust. This is another instance of the normative asymmetry we 585 This may seem to be at odds with Greenberg’s attribution to legal practices of the normative property of bindingness. As we may recall, Greenberg argues that a legal practice is normatively felicitous so long as to every legal obligation there corresponds a moral obligation with the same content. But this causes only an apparent tension with the characterization of legal practices as non-transmissive for the simple reason that the normative property of bindingness is not a property of act-types that is transmitted to the act-tokens that realize these act-types but a shorthand for a purported normative function of legal systems consisting in the alteration or the determination of the moral profile in a way that makes the moral situation better. 721 encountered in the case of wide-scope rational requirements. In the next chapter I will associate this asymmetry with the action-constraining way in which facts about enforceability are normatively salient. In the meanwhile it is worth recalling from the first part that enforceability is a multi-track disposition in the sense that it can be manifested in two explanatorily distinct ways. The first way regards states of affairs that count as instances of reaffirming trust that an action or the ability to act in a particular way is supported by agent-neutral reasons. This type of manifestation corresponds to what is more commonly identifiable as instances of conformity with legal duties and exercises of privileges, powers or immunities. The second way regards states of affairs that count as instances of restoring trust that an action or the ability to act in a particular way is supported by agent-neutral reasons. This second type of manifestation corresponds to instances of coercive enforcement which may take various forms depending on the nature of a particular legal violation. With these conceptual additions we may return to the question of what makes it the case that the practice of law is derivatively normative. In the same way that we saw the distinction between the source of the normativity of facts about publicly evaluable actions and the normative relevance of practices of thick evaluation, we can locate a similar distinction between the derivative normativity of legal practices and the normativity of enforceable obligations. The latter is non-derivative precisely in the sense that the source of the normativity of requirements to validate trust just is a principle 722 about the normative relevance of enforceable obligations. On the other hand, facts about the invitation of trust by legal practices do not directly ground the requirement to validate trust.586 By virtue of the fact that they constitute the metaphysical grounds of dispositional facts about the enforceability of particular obligations and rights they trigger the principle enjoining the manifestation of enforceability or, equivalently, the validation of trust. Another way to articulate the same point is that the source of the normativity of requirements to validate trust is the Principle of Trust Validation and not the Principle of Legal Relevance that serves to individuate the aspects of legal practices that qualify as proper invitations of trust. In that sense the normativity of legal practices piggybacks on the normativity of the general requirement to validate the trust that these practices invite. This is also what makes legal practices essentially capable of figuring in the explanation of how particular requirements of trust validation are generated. As evidenced by the fact that the disposition of enforceability can only be grounded in the trust warranted by practices properly individuated as legal, the practice of law is an essential means of warranting our trust that we are jointly bound by reasons we could all share. They are not just one among many ways of activating the mechanism of inviting this particular kind of trust. They are rather the only way by which this mechanism can operate. Finkish or non-public practices like the ones enumerated in the Principle of Legal Relevance cannot contribute to 586 As I already mentioned, I will elaborate on the grounds of requirements to validate trust in the following and last chapter. 723 the content of the law because they fail to properly warrant our trust in the worth of abstract joint requirements. It bears emphasizing that the argument is not that these finkish or non-public practices failed to be classified as legal under any conceptual scheme whatsoever. In other words the argument is not conceptual but normative. It says that even if these practices qualify as being legal under a set of descriptive or institutional criteria they fail to make the contribution they purport to make to the content of the law. CHAPTER VI 724 The Nature and Grounds of the Normativity of Enforceable Obligations Hopefully, I am currently in a better position to demonstrate why this uncanny digression has not been licensed without a good cause. In my effort to avoid getting too early into a formal exposition of what, arguably, distinguishes both the normativity of action-guidance from the normativity of action (or attitude)-constraint and the normativity of depictive impact from the normativity of constitutive impact, I have decided to take a more gradual approach which played out via two digressions. Earlier in this part I tried to deflate the initial suspicion that my newly introduced jargon may reasonably have caused by associating the concepts of response-constraint and constitutive impact with two respective questions about the normative “autonomy” of requirements of rational consistency and of thick value. With regard to the first question I tried to apply the concept of response- constraint as part of a possible answer to the question of whether the violation of some normative requirements can be normatively objectionable beyond the fact an agent has failed to actually guide her conduct in a way that guards her against normative criticism all things considered. With regard to the second question I tried to provide an argument in favour of the non-reducibility of thick evaluation by exploring how the concept of constitutive impact can shift the focus from the disentanglement of 725 description from the evaluation of actions to the disentanglement of description from the evaluation of agents. At a later stage I ventured a second digression in the hope that I could facilitate the transition to an alternative way of thinking about legal normativity by raising the issue of another type of normative “autonomy”. This is the question of whether social practices can be non-derivative sources of practical normativity. In what followed I tried to show why only some practices can be derivatively normative. To this effect I embarked on a meticulous contrastive examination of law with three other types of social practice whose mechanics are, for different reasons, comparable to the mechanics of legal enactment. In response to these two digressions I would like to conclude this second part by doing two last things. First I would like to try to apply some of the insights of these digressions to my alternative conception of legal facts as facts about enforceability. Secondly, I would like to go a step further by asking what could possibly ground the normative relevance of facts about enforceable obligations and rights. With regard to the first task, the idea I would like to exploit in defence of the legal story I want to tell is that there can be cases of action constraining requirements whose violation is not a question of what conduct has fallen short of satisfying them in a proper way in a particular circumstance. To this effect I have adduced some evidence in favour of that view by taking on board a nonetheless controversial account of rational requirements of coherence or consistency but it should be fairly 726 obvious that what I ultimately plan to achieve in what follows is to substantiate and extend this view to the case of law regardless of whether it can survive deeper scrutiny in the case of rationality. With regard to the second task, the idea I will try to sketch is that the stringency of enforceable requirements is grounded in their constitutive relation to an intrinsically valuable type of agency which I have already described as the capacity of doing things together for the sake of their freedom-upholding character. As soon as I corroborate this association I will be in a better position to show its relevance for rethinking our conception of the value of the rule of law. This will be the end line of this quest which hopefully could welcome some fresh ideas about the available ways of testing law’s normative stamina. VI.1. Law and Normative Asymmetry: The Relevance of Action-Constraint Perhaps one of the greatest bewilderments in the history of common law scholarship is the one caused by Oliver Wendell Holmes notorious opinion that ‘[t]he duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it,—and nothing else’.587 Letting 587 Oliver Wendell Holmes, ‘The Path of the Law’ in Harvard Law Review (1897) 10: 457, at 462. 727 aside Holmes’ theory’s formative impact on American Legal Realism and obliquely on the economic analysis of law588, the aspect I would like to highlight by citing this famous passage regards the early depiction of a widely misunderstood version of how law and wide-scope normativity meet. In response to the controversy spawned by the initial articulation of his view, Holmes added a bit later that ‘I stick to my paradox as to what a contract was at common law: not a promise to pay damages or, etc., but an act imposing a liability to damages nisi. You commit a tort & are liable. You commit a contract and are liable unless the event agreed upon, over which you may have no, and never have absolute, control, comes to pass.’589 Despite the systematic misreading of Holmes passage and its further association with the doctrine of the efficient breach of contract, Holmes sought many occasions to clarify that he did not mean that performance of a contract is a morally indifferent option but that it was nevertheless true that from the point of view of contract law both payment of damages and performance satisfy the prediction associated with the legal norm about keeping contracts. Admittedly, the way in which this dispute over the meaning of this phrase has been articulated fails to gauge the conceptual registry with which the same phenomenon would have been approached by 588 Legal realists also had a normative agenda that emphasized the need to consider the actual consequences of legal rules, including their incentives and distributive effects. This portion of the legal realist agenda has had a profound influence on economic analysis of law. 589 Mark DeWolfe Howe (ed.), The Correspondence of Mr Justice Holmes and Sir Frederick Pollock, 1874-1932, Two Volumes in One, Second edition, Belknap Press, 1961, p. 177. 728 philosophers of normativity. As I aspire to explain, despite his deflationist conception of legal normativity Holmes’ idea is very close to a complete account of the normative asymmetry of wide-scope requirements. As we have already noted in the case of rationality, rational requirements of consistency are marked by a normative asymmetry of exactly the same kind: I am necessarily irrational if I violate a wide-scope requirement, but not necessarily rational if I comply with a wide-scope requirement. By the same token, whereas, for instance, creating the conditions for escaping both performance and payment necessary violates the legal requirement to keep a contract, I am not necessarily free of moral blame if I comply with this requirement by way of efficiently breaching a contract. Leaving behind the historical and jurisprudential context of Holmes’ early association of an aspect of law (contract law) with the concept of wide- scope (predictive) requirement, I would like to elaborate on the way in which my replacement of legal facts with facts about enforceable obligations and rights results in a wide-scope account of their normative salience as action-constraining instead of action-guiding requirements. To this effect, I suggest to return to the fully deployed version of enforceability as the disposition of obligations or rights to validate trust in the agent- neutrality of the reasons that support them.590 The validation of this special 590 In the first part of this thesis, I have advanced a more pithy definition of enforceability as the (extrinsic) disposition of obligations (and rights) to validate trust in the obtaining of a particular joint requirement (within a given political community) about what we should jointly do (obligation) or what we should be jointly able to do (right). In a formal language, this claim about the case of enforceable obligations can be articulated by virtue of the 729 kind of trust includes but is not limited to what one does or may do in conformity with the law; it also includes what is being done to someone who chooses not to act in conformity with the law. Coercive responses on the part of the law most characteristically include the judicial enforcement of civil claims (remedial enforcement), the exercise of the state’s power to try and punish criminal offenders (punitive enforcement), the imposition of administrative sanctions, the use of physical force by enforcement agencies, the nullity or enforced annulation in the case of abusive exercises of powers. The core idea is that precisely because both what one does and what is being done to her in law’s name are ways of satisfying591 the following two propositions about the manifestations of enforceable joint requirements: (a) To say that a duty to do one’s part of a joint requirement to φ (for short, an obligation to φ) is enforceable is semantically equivalent to the claim that if A φ’s, A’s φ-ing constitutes an instance of reaffirming trust that φ-ing is supported by agent-neutral reasons. (b) To say that a duty to do one’s part of a joint requirement to φ (for short, an obligation to φ) is enforceable is semantically equivalent to the claim that if A does not φ and B does ψ (to A), B’s ψ-ing constitutes an instance of restoring trust that φ- ing is supported by agent-neutral reasons. This is a normative conception of what it is exactly for law to be efficacious. On this more nuanced understanding, instances of conformity/exercise or coercive enforcement are manifestations of one and the same disposition precisely in the sense that they are both individuated as actual validations of the trust in the obtaining of a joint requirement that some aspects of the sayings and doing of legal officials invite. In the case of conformity or exercise validation takes the form of reaffirming our trust that it is φ-ing what we should jointly do (duty) or what we should be jointly able to do (privilege) or what we should be jointly empowered to do or what we should be jointly immune from doing. In the case of coercive enforcement validation will take the form of restoring our trust in the obtaining of the previous kinds of joint normative states of affairs. 591 Later in this section, I will explain why these two ways of satisfying the law are normatively asymmetrical in the sense that they are not equally ideal from a normative 730 requirement that trust be validated our default position in the normative enterprise of law is not transparent to the normative standards purporting to guide our moves towards either the direction of reaffirming trust by way of conformity with duty or exercise of our rightful capacities or the direction of enforcement. As it stands, the fact that the obligation to φ is enforceable is system S corresponds to a requirement that takes wide-scope over the two generically distinct manifestations of the disposition to validate trust. The first type of manifestation comprises instances of trust reaffirmation constituted by acts of fulfilling an obligation or exercising a privilege, power or immunity. The second type of manifestation comprises instances of trust restoration constituted by various acts of remedial, punitive, administrative or physical enforcement. To bridge the gap with the previous section, this wide-scope requirement is an instantiation of the Principle of Trust Validation which, as we saw, is triggered by the fact that some aspects of the practice of law have successfully invited our trust that our jointly φ-ing is supported by reasons we could all share. All that this principle enjoins is that the enforceable aspects of legal content be manifested without standpoint. As it will become evident, this normative asymmetry poses no problem for an action-constraint-based account of legal normativity precisely because it makes intelligible the need to supplement action-constraining requirements with action-guiding ones. The crucial point is that this supplementation cannot be carried out by legal normativity proper as law itself lacks the resources to normatively account for what best justifies actual instances of law-conforming or law-enforcing action. For the latter task, the morality of coercion is called for as a necessary supplement to what the “rule of law” purports to regiment. 731 providing guidance as to the normatively felicitous or optimal ways of satisfying particular instantiations of that principle. In what follows I will elaborate on two controversial examples. The first case will feature an external controversy between an economic and corrective justice approach to contract breach, whereas the second case will be about an internal controversy between proponents of a normative doctrinal approach to tort. Both cases are illustrative of what it means that the action-constraining role of legal requirements must be supplemented by substantive moral reasoning. One example is Richard Posner’s case of an efficient breach of contract.592 Posner invites us to imagine that A signs a contract to deliver 100,000 custom-ground widgets at 10€ apiece to B for use in his boiler factory. After A has delivered 10,000, C comes to A, explains that he desperately needs 25,000 custom-ground widgets at once since otherwise he will be forced to close his pianola factory at great cost, and offers A 15€ a piece for them. A sells C the widgets and as a result does not complete timely delivery to B, causing him to lose $1,000 in profits. Having obtained an additional profit of $1,250 on the sale to C, A is better off even after reimbursing B for his loss, and C is also better off. Posner concludes that because the breach is Pareto superior A is entitled to breach the contract. In other words, whereas the law is silent on which way—performance or payment of damages—is the proper way to satisfy the wide-scope requirement that contracts be kept, on 592 Richard A. Posner, Economic Analysis of Law, 8th ed., Aspen Publishers, 2011, p. 119. 732 Posner’s economic analysis of law, in this particular circumstance breaching the contract is the normatively optimal way of satisfying the requirement that our trust that keeping contracts is supported by reasons we could all share be validated. Of course, as we should expect, there is a very strong jurisprudential opposition against taking the option of breaching the contract as the proper way of satisfying the requirement. Dissenters will retort that not only does law seeks to discourage breaches, efficient or otherwise, but that damages and other legal remedies are substitutes for private warfare!593 How can the alternative analysis of legal requirements as wide-scope requirements of trust validation facilitate the adjudication of this episode of disagreement? We may recall that the distinctive mark of the action- constraining version of normative salience is that the facts that impose a constraint and the facts that explain why a particular response has been a normatively felicitous or infelicitous way of satisfying this constraint are not 593 I owe this line of defence to Joseph M. Perillo who appeals to normative doctrinal theory in order to explain why under circumstances like the ones postulated by Posner’s example the normative asymmetry of a legal requirement should ideally be satisfied by way of performing the initial contract (see his ‘Misreading Oliver Wendell Holmes on Efficient Breach of Contract and Tortious Interference’ in Fordham Law Review (2000) 68 (4): 1085- 106). To this effect he quotes a comment by Arthur L. Corbin who notes that ‘[t]he chief purposes for which the remedy in damages for breach of contract is given are the prevention of similar breaches in the future and the avoidance of private war’ (in Arthur L. Corbin, Corbin on Contracts: A Comprehensive Treatise on the Working Rules of Contract Law, Volume 5, 2d ed., St. Paul, Minn: West Publishing Co., 1964, § 998, at 23). 733 the same. Moreover, I argued at length that this is a benign instance of divergence between what performs the metaphysical role of giving rise to a normative demand and what performs the explanatory role of explain ex post the wrongness or rightness of one’s response to this demand. The model of response-constraining facts relies on the synergy between wide- scope requirements and basing requirements which assume the role of providing guidance as to which of the alternative ways of responding to a wide-scope demand is the normatively correct one. What is crucially important is that these basing requirements are not properly speaking “legal” in any informative sense. In other words, they do not arise from the fact that a given obligation or right is enforceable but by enforceability- independent facts about the what constitutes a reason for reaffirming or restoring trust in a particular case. They derive their relevance from principles of interpersonal morality and depending on the facts of a case they can dictate which way of validating trust is the appropriate one all things considered. In the current example, we may simplify things by supposing that the wide-scope requirement is the very general requirement that trust in the agent-neutrality of the reasons that mandate that contracts be kept be validated.594 By the lights of this alternative view, trust can be validated either by way of being reaffirmed through performance or by way of being 594 Or in a more complete formulation, the wide-scope requirement is the very general requirement that trust in the agent-neutrality of the reasons that require our jointly keeping contracts be validated. 734 restored through enforcement. Consequently, the jurisprudential standoff between proponents of the economic analysis of law and proponents of normative doctrinal theory can be re-translated as a dispute about whether in the particular circumstances A ought to reaffirm a special kind of trust by performing his initial contract with B or proceed with his agreement with C and allow the legal system to see to it that trust is restored by making him pay damages to B. By reparsing this problem as a problem of trust validation I believe that the content of right answer tends to fall within the same ballpark with what a proponent of the traditional legal doctrine would say. The reason is that by viewing the normativity of law as the normativity of upholding a special kind of trust it becomes evident that under the given circumstances A’s manipulative precipitation of an official restoration of trust is not a proper way of validating it precisely because by virtue of his deriving profit through the official mechanism of coercive enforcement he would make a mockery of the agent-neutral reasons that the restoration of trust is supposed to uphold. The legal requirement is that trust in the agent- neutral reasons that mandate that contracts should be kept ought to be validated. By deriving profit from this situation A’s inducement of the process of official enforcement replaces the agent-neutral reasons for keeping his contract with B with prudential agent-relative reasons. While Pareto optimality as such is agent-neutral, achieving it never requires anyone to do anything that isn't in their own interests. In other words, by 735 the lights of Pareto efficiency we can never share the same reason for keeping contracts and, as a result, no way of upholding a will be conducive to the type of trust validation under discussion. The only thing we are led to trust is our own selves and nothing more. The second case features an internal dispute between normative theories of tort law. The case I have sampled out regards the nature of the duty of care in negligence law. A thorny question in this regard is whether judgments of breach of the duty of care should be strictly tailored to the demands of particular people or to classes of people put at foreseeable risk of physical injury. If the former view is correct, it will not be sufficient that the plaintiff establish that the defendant owed her a duty and the defendant’s breach of the duty of care caused her physical injury. Rather she must substantiate a case for a strictly relational breach by showing that the defendant’s conduct was careless in relation to her personally rather than to the class of persons under which she would be classified in the case at hand. In that sense defenders of ‘relational breach’595 maintain that a 595 Relational accounts of breach can be found in the writings of both civil recourse and corrective justice theorists. For instance, Ernest Weinrib’s corrective justice theory propounds a relational conception of negligent wrongdoing. In his words, ‘the concepts of the common law of negligence constitute a single normative sequence that begins in the defendant’s action and ends in the plaintiff’s suffering’ (E. Weinrib, The Idea of Private Law, Cambridge MA: Harvard University Press, 1995, p. 147). From the same tradition of thought Arthur Ripstein holds that patterns of fair interaction fix the strictly relational character of the duty of care noting that liability should be limited to risks that make conduct wrongful (see A. Ripstein, Equality, Responsibility, and the Law, Cambridge: Cambridge University Press, 1999, p. 65 ff.). Civil recourse theorists like Benjamin Zipursky and John C.P. Goldberg also hold a personalized view of negligent wrongdoing. In 736 general duty not to wrong to other people or interests cannot by itself be action-guiding in any robust sense but it can only be owed to those who will be entitled to sue if the relevant standard of conduct is breached.596 A case that aptly animates the relevant dispute is an appellate decision written by Justice Benjamin Cardozo known as Palsgraf v. Long Island Railroad Co.597 With regard to the facts of the case the tortious event took place at a train station in New York. A passenger carrying a package, while hurrying to board a train, appeared to two of the railroad's (defendant's) employees to be falling. The guards' efforts to aid the passenger caused the a co-authored article they defend the view that we should ‘conceive of duty as relational, that is, as owed by specific defendants or classes of defendants to specific plaintiffs or classes of plaintiffs, rather than by each individual to the world’ (‘The Moral of MacPherson’ in University of Pennsylvania Law Review, (1998) 146 (6): 1733-1847, at 1744); see also John C.P. Goldberg & Benjamin C. Zipursky, ‘Seeing Tort Law from the Internal Point of View: Holmes and Hart on Legal Duties’ in Fordham Law Review, (2006) 75 (3): 1563-91. 596 Jane Stapleton attributes this association between action-guidance and the strictly relational conception of the duty of care to Goldberg and Zipursky’s view of relational wrongdoing. In her description of the view, ‘any prospective guidance directives given by tort law limit the actor’s radar to those who will, ex post facto, be entitled to sue if the actor contravenes the mandated standard. It would mean, for example, that the prospective guidance from public nuisance is that polluting the environment of many “second-class” citizens is acceptable, and the polluter need have no one on his “radar” so long as he avoids causing “special damage” to someone. It would also carry the same distasteful prospective message in those negligence areas where only certain parties can sue: affirmative duties, emotional harm, and pure economic loss.’ (see J. Stapleton, ‘Evaluating Goldberg and Zipursky’s Civil Recourse Theory’ in Fordham Law Review (2006) 75 (3): 1529-62, at 1531). 597 Palsgraf v. Long Island R.R. Co., Ct. of App. of N.Y., 248 N.Y. 339, 162 N.E. 99 (N.Y. 1928). 737 passenger to drop the package he was holding onto the rails. Unbeknownst to the guards, the package contained fireworks, and the package exploded when it hit the rails. The shock reportedly knocked down scales at the other end of the platform which injured Mrs. Helen Palsgraf (plaintiff). Palsgraf sued the railroad, claiming her injury resulted from negligent acts of the employee. In the majority opinion authored by Justice Cardozo reaffirmed598 his jurisprudential view that the duty to act with reasonable care is not a duty owed to the world at large, but a duty owed to a particular plaintiff. As a result, the judgment reversed and dismissed Palsgraf's complaint, deciding that the relationship of the guard's action to Palsgraf's injury was too indirect to make him liable. In response to this ruling there followed a voluminous scholarship on the question of what it is to discharge a duty of care in particular circumstances and, consequently, when redress is in order. Both civil recourse theorists like John Goldberg599 and Benjamin Zipurksy600 and corrective justice 598 Chief Judge Cardozo, writing the majority opinion in Palsgraf, rejected the jury verdict for Mrs. Palsgraf and ordered that the complaint be dismissed. His relational view of negligent wrongdoing is clearly illustrated in his comment that “[w]hat the plaintiff must show is ‘a wrong’ to herself; i.e., a violation of her own right, and not merely a wrong to someone else, nor conduct ‘wrongful’ because unsocial, but not ‘a wrong’ to any one’ (ibid, at 100). 599 John C.P. Goldberg and Benjamin C. Zipursky, ‘Torts as Wrongs’ in Texas Law Review (2010) 88 (5):917-86. 600 Benjamin C. Zipursky, ‘Palsgraf, Punitive Damages, and Preemption’ in Harvard Law Review (2012) 125 (7): 1757-97. 738 theorists like Ernest Weinrib601 have applauded this ruling on the grounds that wrongdoing in negligence is strictly relational in the sense that the duty of care is only owed to those who will be entitled to sue if the mandated standard is breached. On these approaches the conduct of the railroad company’s employee’s in shoving the passengers onto the moving train was particularly negligent to those passengers and their property but not to Mrs. Palsgraf. In other words, on this strictly relational cluster of views no duty of care specifically owed to the plaintiff was breached. On the other side of the bench there have been arguments from distributive fairness chastising the decision on the grounds that it misidentified the reasons for which Mrs. Palsgraf had no right to recover. On this alternative cluster of views the question should not be whether injury to the plaintiff herself might reasonably have been foreseen but whether injury to someone of her community of risk might reasonably have been foreseen. In other words, the primary duty of care should be seen as owed by everyone to everyone and the grounds of its actual breach are a function of whether a certain conduct has posed a reasonably foreseeable risk of harm to anyone located within the risk zone of the relevant activity. Recall that the issue at hand is a question of normative action-guidance. We are not asked whether there is a duty of care as a matter of law but what care is due at a particular circumstance. Regardless of the fact that on either view Mrs. Palsgraf was 601 Ernest J. Weinrib, The Passing of Palsgraf?’ in Vanderbilt Law Review (2001) 54 (3): 803- 12. 739 not entitled to petition the law to sanction the careless party the reasons adduced in support of her lack of entitlement are strikingly different. In which sense could an understanding of the satisfaction of legal requirements either in terms of trust reaffirmation or in terms of trust restoration tilt the balance in this dispute? We could see how this could play out by reparsing the question of what constitutes a standard of reasonable care as a question about what properly counts as a reaffirmation of trust that there is an agent-neutral reason to display reasonable care: would this special kind of trust be properly reaffirmed by acting without putting anyone belonging to a class of potentially risk-exposed persons at reasonably foreseeable risk or by acting without putting at reasonably foreseeably risk those who could be personally wronged or entitled ex post facto to civil recourse? The broadly contractualist approach602 of proponents of the strict relationality of the duty of care imposes an individualist restriction which limits the grounds for rejecting a principle—in this case, the principle of due care—to its implications for single people. This is to say that the duty of care owes its normative force to the fact that there is no agent-relative reason that could reasonably justify its rejection. On the 602 For an overview of the contractualist underpinnings of relational theories of tort see, John Oberdiek, ‘Structure and Justification in Contractualist Tort Theory’ in John Oberbiek (ed.), Philosophical Foundations of the Law of Torts, Oxford: Oxford University Press, 2014, pp. 103-21. 740 other hand, the broadly distributivist approach603 holds that the same duty obtains in virtue of the fact that there is an agent-neutral reason for anyone who benefits from a risky yet mutually advantageous joint activity to have a fair share of the burden of preventing the imposition of reasonably foreseeable risks. The action-constraining model invites us to supplement the general requirement to validate trust in the agent-neutral reasons in favor of displaying reasonable care with basing principles that can guide us in figuring out whether a given conduct can count as a proper reaffirmation of that trust or whether the same conduct is such that in the relevant context it mandates a restoration of that trust—a duty of repair in our case. Provided that the object of trust is also about the nature of reasons that ground the duty of care in negligence law we could ask whether the individualist restriction suggested by the contractualist theorists604 should 603 See among others Dilan A. Esper and Gregory C. Keating, ‘Putting “Duty” in Its Place: A Reply to Professors Goldberg and Zipursky’ in Loyola of Los Angeles Law Review (2008) 41(4): 1225-94. 604 With a view to guarding his own contractualist principle against a possible collapse to consequentialist ideas Thomas Scanlon formulates this restriction as follows: ‘the justifiability of a moral principle depends only on individuals’ reasons for objecting to that principle and alternatives to it’ (in T. Scanlon, What We Owe to Each Other, p. 229). Scanlon also claims that, by appealing to this restriction, we can reject utilitarianism ‘in what seems, intuitively, to be the right way’ (ibid, p. 241). His basic idea is that utilitarians reach unacceptable conclusions because they mistakenly aggregate different people’s benefits and burdens. Derek Parfit engages in a charitable criticism of Scanlon’s view by suggesting that his contractualist theory would acquire a stronger appeal if it did without the individualist restriction. Whereas Scanlon seems to be firmly anchored to the pivotal role of this restriction Parfit argues that Scanlon’s guiding idea is that of justifiability to 741 figure in the explanation of why the fact that Mrs. Palsgraf was injured as a result of their actions of the railroad employees did not provide a reason to repair her injuries thereby restoring trust that the general duty of care is supported by agent-neutral reasons. To answer this question we need to recall two things. Firstly, we need to realize that the mere fact that the duty of care is enforceable, or equivalently, is disposed to validate trust that it is supported by agent- neutral reasons is not in itself a reason to reaffirm this trust. The model of action-constraint predicts that the reasons for reaffirming or restoring trust in particular circumstances are not identical with the dispositional fact that the duty of care is enforceable. These supplementary facts are not dispositional facts but facts about political morality that serve to guide us through the maze built around the normative asymmetry between reaffirming and restoring trust. Secondly, we should recall that on the alternative metaphysical account I defended in the first part, law as enforceability is an answer to a moral problem about the relation of trust to coercion triggered by the fact that the circumstances of legality accentuate each person. In Parfit’s words, ‘[w]hen we ask on what grounds anyone might reasonably reject some principle, it seems a plausible suggestion that each person’s grounds for rejection are provided by the burdens that this principle would impose on this person, and by other such personal reasons. But this suggestion about grounds for rejection is not implied by the idea of justifiability to each person. It would be no less plausible to claim that, in rejecting some principle, each person could appeal to the burdens that this principle would impose not only on her, but also on other people. Scanlon could give up his Individualist Restriction without giving up, or in any way weakening, his idea of justifiability to each person.’ (see D. Parfit, ‘Justifiability to Each Person’ in Ratio (2003) 16 (4): 368-90, at 388). 742 the moral necessity of responding to the trust deficit associated with the potentially wrongfully coercive results of trying to participate in highly abstract patterns of joint action. In this regard the practice of law was presented as a solution to this problem by appeal to the fact that, properly understood, legal practices can warrantedly invite our trust qua members of a political community that the reasons supporting our interaction through general patterns of joint activity are common. With these two qualifications in mind, I would like to venture a final reparsing of the last question as a question about whether there can be an agent-relative reason to reaffirm trust in the obtaining of a duty to jointly display reasonable care that is supported by agent-neutral reasons. According to the contractualist view, the putative agent-relative reason that is crucially missing in this case is the fact the railroad employees would be morally responsible for wronging Mrs. Palsgraf or that Mrs. Palsgraf would be legally entitled to an avenue of recourse against them. This is a reason that is grounded in the injurer-victim relationship and as such it is strictly agent-relative. Suppose now that this fact obtained, that is to say, the conduct of the railroad employees was a personal affront and a careless disregard of Mrs. Palsgraf’s safety. Could we then say that the fact that the railroad employees would be morally responsible for wronging Mrs. Palsgraf is a reason to omit this conduct, thereby reaffirming trust that the duty to jointly display reasonable care is supported by agent-neutral 743 reasons? In light of how I have enriched the premises of my argument, I dare to say that the answer must be negative. The reason is that even in this particular context the trust that is supposed to be reaffirmed is not Mrs. Palsgraf’s trust or the trust of her plus the trust of the boarded and by-standing passengers but the trust of any member belonging to the political community in which the relevant enforceable duty of care obtains. The trust that should be reaffirmed is that in being jointly required to display the relevant care no one is wrongfully coerced or manipulated into contributing to scheme of action for reasons she could not have precisely because everyone involved could share the same reason(s) to participate. Consequently, the relevant trust is also agent-neutral not because it features the concept of an agent-neutral reason but rather because those whose trust is invited by the practice of law just are those who are jointly required to display reasonable care. In this regard it is the possibility of reaffirming each and everyone’s trust that counts. In corroboration of this explanation we may recall the exact meaning of the adverbial ‘jointly’. To say that a practical requirement to display reasonable care is joint is to say (1) that, for a given class of agents A, all members of A should do (everyone does her part of displaying reasonable care). This statement is true if and only if there are no individual requirements of the form (2) I should display reasonable care in circumstance C, (3) John the railroad worker should display reasonable care 744 in circumstance D, (n+1) N should display reasonable care in circumstance E, such that (1) consists in or holds in virtue of (2), (3)…(n+1). On this approach a duty of care can become enforceable only if it can be formulated in terms of a joint requirement to participate in the distribution of the burdens of valuable or necessary but potentially harmful activities. In that sense the particular reasons for affirming or restoring trust in its specified sense must also be agent-neutral. In the current example this would entail that only facts about putting to any foreseeable risk a certain class of agents that is abstractly associated with the risk zone of this type of joint activity could provide a reason to display a particular degree of care in a given circumstance. In this explanatory framework, acting on this reason would constitute an instance of reaffirming this special kind of trust. VI.2. Law and Evaluation: The Relevance of Constitutive Impact In the previous section I tried to illustrate by appeal to examples the interaction between wide-scope legal requirements and basing principles in the hope that I could illuminate the sense in which dealing with normative asymmetry between instances of reaffirmation and restoration of trust requires substantive moral reasoning. In this section I plan to elaborate a bit further on the other dimension of normative relevance which by now should be also familiar as the dimension of normative impact. Whereas on 745 the previous dimension of normative salience action-constraint allows for a benign gap between the facts that impose constraints and the facts that explain which way of satisfying these constraints is normatively optimal, the dimension of normative impact features another variety of benign divergence which I have associated with the term ‘constitutive impact’. This phenomenon regards the case where the facts that serve as a standard of evaluation of one’s conduct differ from the facts that explain this conduct. In the case of civility we already encountered an instance of constitutive impact which regards the way in which thick evaluative traits are attributed to agents instantiating the practice through their actions. On that occasion an agent is evaluated as being courageous or generous by virtue of whether she could treat the fact that her action is disposed to be publicly evaluated as courageous or generous as a reason for action. At the same time, she may still merit this appraisal even if the fact that she actually treated as reason-giving was a different kind of fact. Moving on to the case of law I would like to suggest that we can encounter a similar instance of constitutive impact. The only substantive difference between law and civility is that in the case of law the facts that could be treated as reason-giving are not dispositional facts about enforceability but normative facts of the kind we encountered in the previous section. This is a natural consequence of the fact that as opposed to the action-guiding capacity of dispositional facts about thick value dispositional facts about enforceable obligations are action-constraining 746 which means that we need to appeal to other basing facts in order to account for what makes a given response normatively felicitous. A major implication of this difference is that the standards by virtue of which we can evaluate agents vis-à-vis their actual ways of responding to wide-scope legal constraints will vary according to the nature of the obligation involved. In other words, whereas in the case of particular instances of thick evaluation it is always one and the same dispositional fact about a particular thick value that features as a standard of appraisal, in the legal case we must appeal to different facts depending on which particular instance of trust is being reaffirmed or restored. On the other hand we should also pause a bit to consider what exactly we intend to convey by saying that in the practice of law the evaluative profiles of agents are not depicted in but rather constituted by their actual responses to wide-scope constraints. In the case of civility the relevant evaluation will always involve the attribution of the evaluative property that a certain act-type is disposed to be publicly evaluated as exemplifying. But what about law? The tricky part in this case is an implication of my favoured metaphysics. Precisely because I have treated legal facts as ontologically superfluous and I have put in their place facts about enforceable obligations and rights, it would be dishonest to insist that legal evaluation is associated with the attribution of the property of being law-abiding. After all to be law- abiding just is to treat legal facts as reasons for action. This would amount to allowing legal facts to surreptitiously reappear on stage. Fortunately, the 747 alternative model of evaluation I have in mind is already implicit in my association of enforceability with trust validation. The proposal I would like to put on the table is that the evaluative property we could associate with felicitous instances of satisfying the constraints imposed by enforceable obligations and rights is the property of upholding the trustworthiness of the practice of law. Being aware that trustworthiness is a term that is widely used across different contexts, I would like to invite my reader to consider the possibility that this alternative use is more than a verbal compromise due to lack of a better synonym. This possibility can become more evident if we ponder for a while on the evaluative dimension of acts of trust validation. We often say that trust is the thing that must be won on a regular basis or that someone has failed to live up to the trust placed in her by others. In this colloquial context these evaluations are usually related to the degree of how the trustworthiness of a person is attested or belied by her behavior. At the same time it is also common to associate political trust with the trustworthiness of legal institutions in carrying out their normative tasks. The same notion of political trust can be extended to describe the way we are normatively related to the values promoted by different institutions like democracy, justice, social welfare and education. By the same token I would like to suggest that any member of a political community ruled by law is at the same time an evaluator and guarantor of the system’s trustworthiness. Every instance of justified conformity with law, every instance of an 748 unimpeded exercise of our privileges, private powers, or immunities, every instance of proper judicial enforcement of our claims as well as every instance of proper exercise of public powers (executive, administrative, punitive) are occasions whereby we witness our constitution as upholders or guarantors of trust by our actions. What is more important is that the embodiment of this role is not conditional on our actual treatment of the agent-neutral reasons for jointly instantiating the practice of law as reasons for action. It may well be the case that our actual motives are prudential, idiosyncratic or habitual but what matters for our status as members of this practice is the fact that we could treat the agent-neutral grounds of our duties and rights as reasons for action. We may illustrate these qualifications by using again the example of an enforceable duty of care. In the previous section I tried to substantiate my inclination to favour a distributivist rather than contractualist normative explanation of what makes the validation of trust in the obtaining of a duty of care important. More precisely, I argued that the fact we should be looking for is the fact that there is an agent-neutral reason for anyone who benefits from a risky yet mutually advantageous joint activity to have a fair share of the burden of preventing the imposition of reasonably foreseeable risks. How would constitutive impact work in the case of someone who diligently displays the necessary degree of care in her daily interactions? My suggestion is that an agent whose actions serve to reaffirm our trust that we should jointly display reasonable care is constituted by these very 749 actions as being an upholder of that collective trust regardless of whether she has actually treated the fact that benefiting from a risky yet mutually advantageous joint activity is a reason to partake of the burden of preventing the occurrence of reasonably foreseeable risks. What really matters is that the same agent could treat this fact as a reason for action. This counterfactual proposition is made true by the fact that benefiting from a risky yet mutually advantageous joint activity is an agent-neutral consideration that by its nature could be taken up by any reasonable person. This fact is not a reason in which a particular agent must pronominally figure in order to display its positive or negative valence. It is a fact that anyone’s ideal self could access. VI.3. The Grounds of Legal Normativity and the Value of the Rule of Law In the previous three sections I took the liberty of indulging in the elaboration of an alternative vision of legal normativity that is free of remorse about failing to live up to the standards of normative robustness emulated by friends of the metric approach. Prior to developing my alternative account I tried to appease my reader’s worry that I am drifting away from indispensable platitudes by focusing on the process by which 750 social practices including law can derive their normativity from independent sources whose activation essentially depends on the triggering effect about practice-instantiating activity. On the view I tried to defend the practice of law derives its normativity from the normativity of a principle of trust validation which is essentially triggered by the trust-inviting capacity of law practices and generates particular wide-scope constraints on manifestations of enforceability. Consequently, I tried to explore the non-derivative normativity of these wide-scope constraints. My idea has been that the requirements arising from facts about enforceable legal content cannot occupy any of the three quadrants that host Nexus reasons, reasons of civility and rational requirements respectively. I tried to explain this radical departure by highlighting the fact that none of these quadrants combine the features of action-constraint and constitutive impact. Following this allegation I tried to show that facts about enforceable legal content fit nicely with the mechanics of the fourth quadrant of my two-dimensional scheme. Whereas facts about enforceability operate only as wide-scope constraints on manifestations of enforceability they are also necessarily supplement by basing principles that help to account for the inherent normative asymmetry between instances of trust reaffirmation and trust restoration. I also explained how these basing principles are related to the normative reasons that support the abstract patterns of joint action we are invited to trust. 751 In the last section of this chapter I would like to make a final move which will be more like dots-connecting exercise than an introduction of new premises. In other words, I would like to capitalize on the inventory of ideas I have established throughout my defense of the ontological and normative relevance of facts about enforceable obligations, privileges, powers and immunities. The argument I intend to employ is markedly constistutivist in the sense that it purports to explain the normative force of wide-scope constraints on manifestations of enforceability by way of showcasing their constitutive, rather than instrumental, relation to an intrinsically valuable type of agency. If we may recall I have already identified this type of agency in the last chapter of the first part when I tried to present the abstract patterns of joint action we are invited to trust as less abstract instantiations of the highly abstract activity of acting for the sake of each other’s freedom. It is precisely this type of agency that wide-scope constraints on manifestations of enforceability make normatively possible. Moreover, a second prong of my constitutivist argument will feature the claim that these wide-scope constraints are themselves made normatively possible by virtue of our practice of the value of the rule of law which I plan to reconfigure as the value of not manipulating or mimicking manifestations of enforceability. The final picture will portray a chain of constitutive dependence between the value of freedom-upholding action and wide-scope constraints on manifestations of enforceability and between these wide-scope constraints and the value of the rule of law. With regard to the former relation of 752 constitutive dependence I shall argue that the practical validation of our trust in the worth of our joint actions is constitutive of the possibility of actually acting for the sake of each other’s freedom. With regard to the latter relation of constitutive dependence I shall argue that making manifestations of enforceability practically and juridically possible as well as refraining from privately usurping the role of these manifestations is constitutive of the possibility of validating our trust that our abstract pattern of joint action partake of the normative structure of acting for the sake of each other’s freedom. A. The Relation Between Freedom-Upholding Action and Enforceability Requirements As I already noted, the first idea I would like to unpack regards the way which satisfying the wide-scope constraints on manifestations of enforceability is constitutive of the possibility of realizing an intrinsically valuable type of agency which I associated with the activity of doing things together for the sake of upholding the freedom of each other. The idea has been dormant as early as when I tried to explain how law purports to turn a moral problem about the relation between coercion and trust into a moral achievement. This little story began with the simple, perhaps naïve, claim that there are some things that we should jointly do. I tried to make this 753 claim more committing by remarking that more specifically there can be abstract patterns of actions that we should jointly realize. That was the point when the story was put on a track of individuation. The point is that we should be ready to recognize that there are valuable patterns of joint action that extend beyond the prospect of specific, synchronic achievements as in cases where our house needs renovation and the value of getting our house renovated makes it the case that you and I should jointly (I paint the walls, you fix the kitchen floor). The normativity of these specific patterns of joint action is not necessarily a function of their moral urgency. They can be as silly or mundane as when we decide to move together a heavy couch to another room. In other words it is not the case that the value of moving a couch is intrinsically valuable. Rather the case is that lifting the couch together is valuable in virtue of its making it the case that I act for the sake of your acting for a reason that we both have, namely, the reason to get rid of the couch. So far so good one might say. The story acquires a challenging structure when our joint action loses its intimacy with our synchronic purposes. This can happen when the description of the pattern becomes significantly more abstract and at the same time more general. In other words, things take on an interesting turn when the things that we should do together become diachronic and the range of people that are called to pitch in acquires universal characteristics. I had previously used the example of redistribution and the activity of jointly paying our taxes as an instance of 754 this more challenging structure. That being said I still owe (a repetition of) the explanation of this challenge. The stimulating problem is not simply that we must invent some rule of thumb for realizing these more abstract patterns nor is it that we she could make sure that we should isolate and re- motivate the inevitable free-riders. The problem is also about these worries but in turn these worries are absorbed by a more pressing concern. The concern is how we come to trust that a particular abstract pattern of joint action has a non-coercive normative structure. In other words, we care to know how we can rest assured that this abstract synergy will not end up enlisting some in the service of reasons owned only by a portion of the class of agents to which the relevant joint requirement applies. This is not an exercise in abstract theory. Even if we acquire reasons to trust that the structure of the pattern itself is non-coercive our concern about the potential coerciveness of some of its instances remains unabated. This is precisely the reason why the problem is one about the relation between coercion and trust rather than a problem about coercion as such. It is true that the more abstract a pattern of joint action gets the less salient our reasons for being suspicious of its non-coercive structure become. But this is a contingent matter and, more importantly, the more abstract a pattern gets the more likely it is that our attempts at properly realizing it will misfire in ways that make our interaction coercive. It seems then that we are trapped in a Minoan labyrinth without a skein of thread to guide us out. Presumably few, if any, would doubt that there is value in diachronic 755 patterns of joint action. Moreover, even fewer would doubt that just because a pattern is abstract enough it is by conceptual necessity non- coercive. Evidence is needed in two ways. Firstly, we need to trust that in principle a given abstract pattern of joint action partakes of the non- coercive structure of the model of acting for the sake of each other’s freedom. Secondly, we need not just occasional but regular confirmation that actual instances of this pattern can replicate its non-coercive structure and that if things go bad there will be a mechanism that can restore our trust that the pattern remains in principle non-coercive. As I already explained in the first part I would like to believe that law can be, at least partly, a solution to this problem. It could be a solution if we could make a plausible case about the way in which law practices can change the normative landscape in a way that turns our trust from provisional and piecemeal to enduring and principled. Principled trust diffused among members of a political community is a great achievement or so I believe. It is great because it is not solely based on circumstantial evidence nor does is it the result of bargaining or conflict settlement. Rather it is the product of principled action on the part of law-making institutions. Earlier on, I associated this principled action with a notion of publicity which I further specified as a relation of transparency between the reasons that could normatively explain particular actions of legal officials and the reasons that could warrant our trust that a particular patter of joint 756 action partakes of the non-coercive structure of freedom-upholding joint agency. Now I would like to add a few more things about why obtaining a warrant for our trust is not enough but needs to be supplemented by witnessing the validation of our trust. The explanation has to do with what I earlier described as the continuity between the metaphysics of law and the normativity of law, or in more familiar terms, between the grounds of law and the force of law. We already saw how facts about the invitation of trust by actions of legal institutions can ground dispositional facts about the obtaining of enforceable obligations and rights. This process was described in metaphysical terms precisely because it made an addition to being by way of making normative states of affairs enforceable. At the same time, however, the same process showed signs of normative impact too. The first sign appeared quite early in the form of public reasons of trust. We saw how the facts that could make what legal officials said, did or thought normatively intelligible could also be facts that we, citizens, could treat as reasons to trust that we are bound by a new abstract joint requirement. This is not a negligible attainment. Actually it is more than half of the story under narration. A public rapport between government and citizens has been established on the basis of an inheritance or transparency pattern. Our success was that more than occasionally the facts that could publicly explain the actions of legal institutions could also become the fact that bear 757 upon the question of why should trust that a new joint requirement is nascent. But normativity is incremental by nature. The more we become aware of the imperativeness of intrinsic goodness of things the more we seek to refine our response to them in light of actual contingencies or factual constraints. In the present case, this refinement occurs by virtue of the generation of further requirements. The first requirement we witnessed being born during the jurisgenerative process was of the guiding sort. We saw that in some particular practice-engendered circumstances we have a reason to trust that we must move forward by taking ourselves to be bound by new abstract patterns of joint action. But this is half of the story. Another type of requirement appears to be pleading for our attention. This ensuing requirement was a constraint rather than a device of concrete guidance. By virtue of the fact that we acquired reasons to trust that we are bound by a new joint requirement the dispositional layer of our reality was enriched with a new instance of an enforceable joint requirement. At the same time the fact that we acquired these reasons of trust triggered a principle that remained dormant. This is the principle of trust validation that states that If an obligation to Φ is genuinely disposed to validate the trust of members of a political community C that Φ-ing is supported by reasons that all could share it ought to be the case that this trust is validated. 758 This principle is essentially attached to the availability of public reasons of trust. The reason is that only publicly shareable reasons of trust should be validated in the ways that the mechanics of enforceability makes possible. Whereas the validation (in the sense of confirmation) of idiosyncratic, opportunistic or cryptic reasons is factually possible it would be wrongfully coercive because it would be conducive to the propagation of a pattern of joint action that would attract the trust or approval of only those who can identify themselves with the partial interests behind the realization of the pattern. In virtue of the activation of this principle by the emergence of public reasons of trust facts about enforceable joint requirements acquire normative relevance in the sense that they become capable of giving rise to a wide-scope constraint enjoining the validation of our trust in the public worth of a particular pattern of joint action. At this point the cycle of birth of normative requirements has been concluded and what remains is our reflection upon the grounds of these requirements. We already talked about the grounds of our reasons for displaying trust in the worth of a new abstract pattern of joint action. These grounds are provided by the principle of transparency that explains the notion of publicity involved here. What we miss is one last supplement that refers to the grounds of the wide-scope requirement to validate this trust. Fortunately, the answer need only be repeated in a more compact way rather than developed because it has already been made available in the preceding narrative about what follows our becoming aware of the fact that 759 there is intrinsic worth in doing things together. The idea is not trenchantly Kantian but it lies within its vicinity. It is not obviously Kantian because the type of agency it takes to be intrinsically valuable is not strictly relational or authority-based but interactional in the sense of a joint commitment to acting for the sake of each other’s freedom. At the same time it is Kantian by inspiration because in jointly doing the things that we should do we act for the sake of enabling each other to act for the reasons that each one is entitled to have. The only difference is that the value involved is not transparent to the value of autonomy or the value of being in charge of things beyond one’s own body.605 The relevant value can be identified as the value of jointly acting for the sake of enabling each other to be independent. The difference is not colossal but it is not eliminable. This alternative idea suggests that we would be less than harmoniously aligned with the goodness of things if we only cared about our capacity to be autonomous in a way that does not wrong others. The idea of freedom-upholding joint agency invites us to display care in a more inclusive manner by making us 605 For a systematic defence of this approach to the relation between legal authority and practical authority see A. Ripstein, Force and Freedom: Kant’s Legal and Political Philosophy, Cambridge MA: Harvard University Press, 2009. This key idea is condensed in Ripstein’s remark that ‘[o]nce the possibility of rightful relations that can be created through affirmative acts is introduced—the possibility that there are things other than your own body [emphasis added] through which you might set and pursue your own purposes— the Universal Principle of Right can only be consistently extended in a way that makes it an extension of freedom rather than a limitation on it’ (p. 58). On this construal legal authority is a morally necessary extension of one’s practical authority over one’s own body, or in Kantian jargon, a necessary complement of one’s innate right of humanity in her own person. 760 sensitive to the worth of being motivated by the prospect of jointly facilitating each other in the exercise of our freedom, or equivalently, in the exercise of our capacity to act for reasons. In light of this distinction I would like to close this section by remarking that law can be a valuable ally in our quest for making this network of care work. Precisely because of the abstractness of acting for the sake of each other’s freedom the actual validation of our trust that the patterns we’ve been following are endowed with the normative structure of this ideal type of agency turns freedom- upholding joint action from an ideal into a practice that can allow us to renew our faith in the worth of what we are doing together and also not leave our occasional disheartenment unattended. B. Formal Legality: Making Enforceability Manifestable Throughout this exposition I repeatedly seized the chance to refer to the property of legality mainly with a critical attitude. I invited the reader to consider the possibility of there being a thick property of legality borne by actions, or a sortal reference of legality to the normative kind LAW. Moreover, I dedicated enough space to elucidating Scott Shapiro’s conception of legality which I ultimately took to be a second-order property whose attribution to planning organizations and norms rests on a conceptual fact entailed by the logic of planning rationality. In all these 761 critical engagements I expressed my doubts about the prospect of gaining much from keeping legality in our metaphysical vocabulary. I hope that by now the arguments are familiar, so I do not intend to rehearse them. That being said, I would be guilty of missing an important point if I ignored another use of legality which spawns a voluminous literature by itself. This is the notion of formal legality or in its more familiar nominal use the (value or ideal of the) rule of law. Despite appearances formal legality is not a monadic property but a cluster of properties606 that can be attributed both to the content of the law of a legal system as well as to the legal system itself. Notably Lon Fuller made a valuable leap towards systematizing the corpus of the properties that constitute the core of formal legality or the rule of law. Fuller identifies eight archetypal routes of failure for any legal system featuring the lack of general laws, secret law, epistemically inaccessible legislation, some forms of retroactive legislation, insurmountable contradictions between law practices, practically or juridically unfulfillable or inapplicable duties, unstable legislation and incongruence between the statutory content and the enforceable content of legal norms.607 At the same time and perhaps more controversially formal legality is treated as a success term in the sense that if the norms of a legal system blatantly fail to instantiate its associated features they not only 606 In that sense it seems that formal legality partakes of the already familiar second-order structure of Shapiro’s use of legality as a substantive rather than formal property of legal systems and their norms. 607Lon Fuller, The Morality of Law, rev. ed., New Haven: Yale University Press, 1969. Fuller offers an extensive analysis of each principle from pp. 46–90. 762 count as being defective but they may lose their identity as parts of the content of a legal system.608 In what follows I do not intend to review the abundant literature on more particular questions such as whether a wholehearted commitment to the indispensability of the rule of law principles may vitiate the positivist project or whether law is a necessary but not sufficient condition of the obtaining of formal legality. Rather I would like to accomplish two things. The first one is more personal or strategic in the sense that it touches upon my treatment of aspects of the rule of law as parts of the structure of my argument about enforceability. With regard to this issue I intend to argue that the possibility of extracting and integrating some of the constituents of formal legality into more substantive aspects of the metaphysics of law bears testimony to the fact that disputes about the rule of law should not be based on a global or en bloc treatment of its dimensions but rather should adopt a piecemeal approach that assigns to each element its own distinct relevance. The second thing I would like to do is more general as it focuses on the relation between the rule of law and law proper. In particular it regards the question of whether the rule of law is instrumentally or intrinsically valuable. In the former case it is argued that we should not be too optimistic about the revelatory contribution of this concept to our 608 It bears emphasizing that the distinction between a system that instantiates formal legality and a system that fails or utterly fails to do so does not overlap with the distinction between what the law should be and what the law is. The latter distinction takes the normative features of legal content to be standards of excellence rather than existence conditions encapsulating the morally minimum content of legal norms. 763 understanding of the concept of law. In the latter case the value of the rule of law not only points the way to law’s reality but also to its normative leverage. In response to these views I would like to suggest an alternative path that becomes available as soon as we reject a premise that both view share, namely, the fact that the rule of law purports to enable the action- guiding function of the law. I plead for the reader’s understanding as I am naturally inclined to begin with the first, more personal question. I have taken three of the eight elements that Fuller has identified as comprising the normative corpus of formal legality to be constitutive components of what I have called the Principle of Legal Relevance. More precisely, the prohibition of ad hoc legislation, the abuse of retroactive legislation and the incongruence between the rules as announced and their actual administration feature under the rubrics of legal particularism, retroactive legislation and the sub- principle of transparency respectively. The first two associations are clear enough but the third one needs some unpacking. Fuller refers to incongruence as a form of practice rather than as a particular property of legislative actions noting that it is the most complex of all eight desiderata that make up what he calls the inner morality of the law.609 He then proceeds to remark that ‘[t]he most subtle element in the task of maintain congruence between [the content of] the law and official action lies, of course, in the problem of interpretation. Legality requires that judges and 609 L. Fuller, The Morality of Law, supra note 21, p. 81. 764 other officials apply statutory law, not according to their fancy or with crabbed literalness, but in accordance with principles of interpretation that are appropriate to their position in the whole legal order.’610 This passage aptly summarizes the affinity between his conception of incongruence between law-making and law enforcement and my suggested principle that the reasons that could explain why legal officials acted in particular ways should be transparent to the reasons that explain why these particular actions of legal officials invite our trust that we should jointly φ. To make this association more clear we should license a loose equivalence between the reasons that counterfactually explain the actions of legal officials and official interpretations of these actions. The affinity emerges as soon as we recall that facts about warranted trust invited by actions of legal officials ground the obtaining of enforceable obligations and rights. With this reminder we could reparse the Principle of Transparency as follows: Principle of Transparency*: the reasons that could explain why legal officials acted in particular ways should be transparent to the reasons that explain why a particular obligation or right is enforceable It now clearly follows that Fuller’s remarks about congruence and my argument about the publicity of reasons of trust are very close if not identical. When a legal practice tolerates egregious discrepancies between a public explanation of legislative action and actual official enforcement we have little reason to trust that what is being enforced is what we qua 610 Ibid, p. 82. 765 citizens should also perform in the first place. In other words, when such discrepancies occur enforceability loses its grounds. The result is a s radical as the result envisaged by Fuller when he characterizes this phenomenon as an utter failure of a practice to qualify as a legal system. With this clarification at hand I would like to say a few more words about what explains the fact that ad hoc legislation, certain practices of retroactive legislation as well as incongruence, or as I would prefer to say, lack of publicity assume a metaphysically pronounced role as opposed to the rest of Fuller’s desiderata. With regard to the first two elements the reason is that that their presence makes enforceable obligations and rights finkish. In other words, it equates the purported grounds of legal content with what constitutes manifestations of its enforceability. With regard to the third element the reason is not that it makes enforceability finkish but that it makes its obtaining impossible. Lack of transparency between the reasons that could serve as normative explanations of institutional activity and the reasons that could warrant our trust in our new duties or rights makes any display of trust towards this practice incomprehensible. The reason is that it turns a purportedly public relation of trust into a private enterprise of divination or evocation of what government might do to us. The fact that these three elements seem to be constitutively implicated not simply in the evaluation but in the generation of legal content lends support to the view that we should not try to accord to formal legality a metaphysical or conceptual unity that it lacks. Different aspects of the rule of law can 766 feature at distinct levels of the jurisgenerative enterprise such that it would be an asset for our understanding of their function if we endorsed a piecemeal approach. Moving to the second, more general question I would like to begin with saying that I have no intention to press my argument farther than the point of making a suggestion as to how the remaining content of formal legality could fit into my account. In other words, I do not intend to disprove the intelligibility of the dispute between instrumentalists and moralists about the value of the rule of law. Moreover, I do not intend to imply that the rule of value cannot also perform the roles these two competing views assign to it. As I already admitted my argument about the nature of legal normativity can seem too idiosyncratic or, even worse, perplexing to merit the right of having implications beyond the narrow contours of metanormative disagreement about the force of law. That being said I would like to preface my idea by taking the liberty of hypothesize an alternative personification of this dispute for the purpose of disembarrassing it from its historical connotations. More precisely, I would like to leave aside Hart’s position about the role of the rule of law mainly because it remains a matter of dispute where exactly he wanted to steer his ardent disagreement with Fuller on this topic.611 In return I would like to contrast Joseph Raz’s instrumentalist account of the rule of law with Fuller’s traditional 611 For a critical appraisal of the Hart-Fuller debate see Jeremy Waldron, ‘Positivism and Legality: Hart’s Equivocal Response to Fuller’ in New York University Law Review (2008) 83: 1135-69. 767 exposition. As I already noted, I do not intend to make a definitive point about the orientation of this dispute. My motivation for reenacting this dispute as transpiring between Raz and Fuller is to explore a bit more the compatibility of my argument about the normativity of wide-scope constraints on manifestations of enforceability with more familiar argument about the normative relevance of the rule of law. Before even starting to portray this contrast I should begin with the platitudinous remarks that for Raz the concept of the rule of law is part of the concept of law. This can be easily anticipated for reasons related to Raz’s exclusive positivist vision of law. With this general caveat we can move on to see how Raz organizes his response against Fuller’s argument about the relevance of formal legality for law. On the one hand Raz is ready to accept that ‘‘conformity to the rule of law is essential for securing whatever purposes the law is designed to achieve.’612 He immediately proceeds to qualify his statement by noting that this essential link regards only the relation between conformity to the rule of law and the realization of the direct purposes of a legal enactment. In other words, the relation regards the purposes that can be secured by conformity with the law (its content) in itself rather than ‘those further consequences of conformity with the law or of knowledge of its existence which the law is intended to 612 J. Raz, ‘The Rule of Law and its Virtue’ in Law Quarterly Review (1977) 93: 195-21, reprinted in The Authority of Law: Essays on Law and Morality (Revised Edition), Oxford: Oxford University Press, 2012 (original publication year 1979), p. 224. 768 secure’.613 From this point Raz proceeds to disassociate the value of the rule of law from the essence of law by advancing an instrumentalist account of the former. He writes, ‘Regarding the rule of law as the inherent or specific virtue of law is a result of an instrumental conception of law. The law is not just a fact of life. It is a form of social organization which should be used properly and for the proper ends. It is a tool in the hands of men differing from many others in being versatile and capable of being used for a large variety of proper purposes...The law to be law must be capable of guiding behaviour, however inefficiently. Like other instruments, the law has a specific virtue which is morally neutral in being neutral as to the end to which the instrument is put. It is the virtue of efficiency; the virtue of the instrument as an instrument. For the law this virtue is the rule of law. Thus the rule of law is an inherent virtue of the law, but not a moral virtue as such.’614 By sharp contrast, Fuller’s non-instrumentalist position is that conformity to the principles pf the rule of law just is conformity to the principles of the internal morality of law. In other words, formal legality is not merely in the service of law’s efficacy but informs its nature and inner purpose which is built on what Fuller calls an ‘implicit view of man’, in the sense that ‘man is, or ca become, a responsible agent, capable of understanding and following 613 Ibid, 225. 614 Ibid, p. 226. 769 rules, and answerable for his defaults’.615 On Fuller’s view law serves to guide human conduct by virtue of respecting people’s dignity as autonomous agents and not by operating as a ‘one-way projection of authority’.616 It is this fact about the deeper structure of law that results in rendering a total disregard for law’s inner morality a condition of the cease of its own existence. In response to the bipolar structure of this dispute I would like to bring to the surface an aspect of these two competing views whose common possession is suppressed in the fervor of disagreement. This shared premise is the idea that whether of instrumental or intrinsic value the principles of the rule of law are intimately connected with an essential property of the normativity of law, namely, its claim to be capable of guiding conduct. Al previously noted, this is an old-cherished platitude that permeates accounts of legal normativity regardless of their positivist or antipositivist inclination.617 At this point I will not regurgitate the argument I advanced against the view that law is a source of guidance, either normative or dispositional (in the sense of efficacious motivation). I would like instead to invite the reader to provisionally tolerate the oddity of my view that facts about enforceable obligations and rights give rise to wide-scope constraints 615 L. Fuller, The Morality of Law, supra note 21, p. 162. 616 Ibid, p. 207. 617 For an overview of the functionalist account of action-guidance in law see Jules L. Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory, Oxford: Oxford University Press, 2001, pp. 206 ff. 770 on manifestations of enforceability rather than to narrow-scope reasons for action. On this provisional condition I shall make a final point about the way in which reconfiguring the nature of legal normativity can also affect our understanding of the normativity of formal legality. As I already noted, I do not intend to present this alternative view as a refutation of the intelligibility of disagreement between instrumentalists and moralists about the normative role of the rule of law. What I would like to accomplish, instead, is a form of closure in the sense that accommodating the role of formal legality in my alternative theory completes a first cycle of reflection on the impact of metajurisprudential disagreement about legal normativity. To make this closure possible I would like to introduce a last piece of extra-jurisprudential jargon into my narration. More precisely, I would like to associate the impact of the remaining five impediments to the rule of law (lack of promulgation/secret law, lack of clarity, contradictions in law, impracticable norms and instability) with the impact of what is known in the dispositional discourse as maskers or antidotes. Moreover, I would like to make two distinct additions. With regard to what could block manifestations of enforceability I would dare to add two more cases, namely, cases of denial of justice as well as the lack or inefficacy of institutions of (administrative, criminal or civil) enforcement. On the other hand, I would like to present another instance of defective manifestation of enforceability which does not consist in raising obstacles to its proper manifestation but rather in mimicking them. I will broadly refer to this practice as an instance 771 of private usurpation of power. The upshot of these adjustments will be an alternative normative role for formal legality. Instead of being instrumentally or morally conducive to the guidance of conduct the rule of law principles comprise a corpus of normative constraints on conduct that make the obtaining of the principle of trust validation possible. In other words, the normativity of formal legality can also be seen as the normativity of enabling manifestations of enforceability, or equivalently, as enabling the normativity of enforceable obligations and rights. In anticipation of this analysis I owe some new vocabulary first. Maskers or alternatively antidotes are cases where the manifestation of a disposition is blocked despite the presence of a proper stimulus and despite the fact that the disposition’s continuous existence is properly grounded. Alexander Bird provides an illustrative definition of an antidote. He invites us to suppose that ‘[a]n object x is disposed to display response r under stimulus s. At time t it receives stimulus s and so in the normal course of things, at some later time t’, x gives response r. The time gap between t and t’ is what allows, in finkish cases, the loss of a disposition. An antidote to the above disposition would be something which, when applied before t’, has the effect of breaking the causal chain leading to r, so that r does not in fact occur. Thus one can ingest a lethal dose of poison, yet not die if a suitable antidote is administered soon enough’.618 What is crucially important in 618 Alexander Bird, ‘Dispositions and Antidotes’ in The Philosophical Quarterly (1998) 48 (191): 227-43. Mark Johnston, refers to the same concept as a ‘mask’; see his ‘How to Speak of the Colors’in Philosophical Studies (1992) 68 (3): 221–263. 772 cases like this is that the dispositions whose manifestations are being blocked are not finkish, that is to say, their grounds are independent of the presence of stimuli. A second case of dispositional “infelicity” involves an interfering factor in virtue of which x mimics the manifestation of disposition D although it does not possess D. A classic example is owed to David Lewis. Lewis invites us to imagine the existence of a “Hater of Styrofoam”. He writes, ‘When a styrofoam dish is struck, it makes a distinctive sound. When the Hater of Styrofoam hears this sound, he comes and tears the dish apart by brute force. So, when the Hater is within earshot, styrofoam dishes are disposed to end up broken if struck. However, there is a certain direct and standard process whereby fragile things most often (actually, nowadays, and hereabouts) break when struck, and the styrofoam dishes in the story are not at all disposed to undergo that process.’619 Lewis correctly observes that at best it would be a misleading truth and at worst an outright falsehood to claim that the Styrofoam dish is fragile. It seems more likely to say that the Hater of Styrofoam is a mimicker of the disposition to break when struck meaning that it makes it the case that the dish, although it does not possess the disposition of fragility, mimics the manifestation of fragility. 619 David Lewis, ‘Finkish Dispositions’ in Philosophical Quarterly (1997), 47 (147): 143-58, at 153. 773 With this new vocabulary at hand we may proceed to see how some of the ways of violating the rule of law can function either as maskers or as mimickers or manifestations of enforceability. Take the case of publicly inaccessible law practices. Imagine a legal system where both deliberations on new enactments as well as the result of this process are not publicly available. We may further suppose that, considered in abstracto, the facts that could normatively explain the actions of legal officials could also invite our hypothetical trust in the worth of new joint requirements. Nevertheless, their capacity to invite our trust is not epistemically accessible by citizens. The absurd result would be that whereas the actions of legal officials could ground the enforceability of a new requirement R, it is impossible for R to manifest its enforceability. The reason would be that despite the presence of a proper stimulus S—for instance, an action that happens to overlap with what would be an instance of conformity with R—S would fail to constitute a manifestation of trust reaffirmation precisely because the availability of the grounds of this trust is not public! No one besides the legislators knows that the actions of the former could warrant their trust that R obtains. As a result, there is no object for reaffirmation. A similar case would be when the actions of legal officials warrant our trust that in its abstract form a particular requirement obtains but it is practically or juridically impossible to implement this requirement. The impracticability of an abstract joint requirement can be a function of diverse obstacles. For instance, it might be the case that a newly enacted statute grounds the enforceability of a highly 774 abstract joint requirement R thus making it necessary to specify this mode of its implementation by the issuance of an executive decree that will determine the conditions of its applicability. If this decree never comes to fruition, R will be enforceable but it will be juridically impossible to witness its manifestation because it will be impossible to determine whether particular actions (stimuli) could count as reaffirmations of our trust that it is R what we should jointly satisfy. Alternatively, it might be the case that whereas an abstract pattern of joint action should obtain, it is practically impossible to implement it because the class of agents it purports to apply to does not exist in a particular community or because it would require an unachievable capacity, an inordinate amount of self-sacrifice or supererogation in order to implement it.620 Moreover, we could imagine the deplorable case of a political community where the administration of justice is so deficient that it is practically 620 Mutatis mutandis the same obstacles would occur in cases where it is impossible to figure out what content a particular enactment could contribute to the content of the law either because the enactment’s content is recalcitrant to any means of semantic or pragmatic access or because there exists an enactment with the exact opposite content. In these cases one might also claim that whereas the actions of legal officials purport to draw our attention to an important matter of joint action they fail to explain what could possibly count as a manifestation of an enforceable policy about this matter. It is important to stress that this case is not meant to include cases of mere vagueness in law. The latter phenomenon is ubiquitous in legal provisions and many philosophers correctly point out that sometimes vagueness in law can be a valuable feature of law-making. Cf. Timothy Endicott, ‘The Value of Vagueness’ in Vijay K. Bhatia, Jan Engberg, Maurizio Gotti and Dorothee Heller (eds.), Vagueness in Normative Contexts, Bern: Peter Lang, 2005, pp. 27- 48 and Hrafn Asgeirsson, ‘Vagueness, Comparative Value, and the “Lawmakers’ Challenge”’ in Archiv für Rechts- & Sozialphilosophie (2012) 98 (3): 299–316. 775 impossible to obtain judicial protection. Unfortunately, this is not a rare occasion even in legal systems that purport to label themselves as “democratic” or “liberal”. Less frequently, there may be cases where the agencies assigned with the task of executing demands of administrative, criminal or civil enforcement are so ill-equipped or disorganized that they fail to carry out the bulk of their workload. This problem may also be compounded by the presence of massive disobedience towards the law that makes it practically impossible for official action to be effective. As one can imagine these problems are fraught with grey areas and it would be a sign of intellectually nonchalance to try to lump their controversial aspects under a single category.621 That being said I would like to remark that in both cases it seems that the restoration of our trust in the obtaining of joint requirements becomes impossible and that is a gross failure of a legal system as such. What these two cases have in common is the fact that they regard exclusively the obstruction of manifestations of enforcement or trust restoration. Moreover, a critical implication of associating the inefficacy of official enforcement with an obstruction of manifestations of enforceability rather than with the finkish grounding of the disposition of enforceability is that what Shapiro describes as the dispositive nature of legal activity turns out to be a normative rather than metaphysical failure of law. This is to say, that instead of saying that law’s egregious inefficacy in enforcing its 621 For instance, it is a separate issue whether cases of massive disobedience may become themselves morally relevant not in the sense that they make a bad example of what a civil society is but in the sense that they render ex post the legislative actions of legal institutional unworthy of our trust. 776 content is a symptom of losing its identity qua law it is more accurate to say that it constitutes a violation of legal normativity proper in the sense that it makes manifestations of trust validation impossible. In other words whereas the aspirational component of trust invitation retains its metaphysical capacity to ground enforceable requirements it lacks its normative capacity to validate this trust. Last but not least there can be cases where despite the presence of an operating institutional structure people decide to follow either the path of a para-legal execution of remedial demands or criminal liability or the path of a self-proclaimed acquisition of the power to coercively direct the behavior of others. There are numerous and structurally diverse examples of self- redress or private usurpation of the power of official enforcement. A recent illustration that combines both aspects of mimicking manifestations of enforceability is provided by what is known as the Pitcairn sexual assault trial of 2004. On October 24 2004, seven men living on Pitcairn Island, a remote British Overseas Territory with a minimal population of approximately 50 inhabitants and a lack of a formal judiciary, were tried on the accusation of rape and indecent assault of female children. Notwithstanding the heinous nature of the offences in issue, the Pitcairn prosecutions raised profound questions for the rule of law, arising from the Crown’s claim of jurisdiction over Pitcairn, and from the fact that the provisions of the 1956 Act had not been published on the Island. The defendants appealed to the Judicial Committee of the Privy Council’s 777 claiming that Pitcairn was not British territory and therefore lacked the necessary jurisdiction to institute the prosecutions. Moreover, they claimed that at any rate the applicable law had not been promulgated in a way that could meet the requirements of the principle of nulla poena sine lege. In a controversial decision in Christian and Others v The Queen1 (Christian and Others)622 agreed to hear the case against British sovereignty on Pitcairn, but refused to suspend the trials pending the outcome of the hearing. The Privy Council terminated the appeal abruptly in July 2006, saying that the argument that Pitcairn has always been self-governing was unrealistic. In response to the notoriety of this case there has been a surge in secondary literature on the “legality” of this trial. In a comment on this case George Letsas aptly remarked that [T]the notion of legality and that of criminal punishment presuppose the existence of a distinct political community with its own collective practices and historical ties. Legal punishment, particularly when it involves imprisonment or other forms of deprivation of liberty, is a case of collective use of coercive force exercised in the name of a political community. Contrast legal punishment to the following cases: victims of injustice who seek self-redress; private avengers hired to inflict harm on wrongdoers; religious fundamentalists who take themselves to have the power to punish sinners in the name of God; individuals to whom others have voluntarily 622 Christian and Others v The Queen (Christian and Others), [2006] UKPC 47; [2007] 2 AC 400. 778 granted permission to inflict physical harm. We would not characterize any of these acts as cases of criminal punishment because they are not done in the name of a political community nor are they authorized by it to do so.’623 Leaving the question of the dubious promulgation of the relevant English statutes and statements, Letsas correctly observes that the ad hoc established Pitcairn Islands Supreme Court could not meet the conditions for membership of a true political community within which legal coercion can be justified. If I may add a remark to this story, it seems that in the Pitcairn case the Sexual Offences Act had not acquired the status of an enforceable corpus of requirements such that the purportedly official response to these crimes was in fact a private usurpation of the public power to prosecute. In other words, these prosecutions mimicked the restorative manifestation of enforceability without there actually existing an instance of this disposition. My final comment on these disparate cases of obstructions or imitations of manifestations of enforceability is that their subversive role is indicative of the way in which the normativity of the rule of law is connected to the normativity of law. The idea is that violations of these rule of law principles entail a violation of legal normativity proper precisely because by making manifestations of enforceability impossible or by mimicking them they make 623 George Letsas, ‘Rights and Duties on Pitcairn Island’ in Dawn Oliver (ed.), Justice, Legality and the Rule of Law: Lessons from the Pitcairn Prosecutions, Oxford: Oxford University Press, 2009, pp. 157-82, at 177. 779 the satisfaction of the principle of trust validation impossible. Recall that according to this principle which gives formulaic substance to legal normativity, if an obligation to Φ is genuinely disposed to validate the trust of members of a political community C that Φ-ing is supported by reasons that all could share it ought to be the case that this trust is validated. In other words, legal normativity is about requirements of trust validation or requirements on manifestations of enforceability. In this regard, it could be claimed that the normativity of some of the rule of law principles is neither derivative nor constitutive of the action-guiding normative function of the law. Rather they are constitutive of enforceability’s action- constraining normativity and in virtue of this role they derive their force from the stringency of the principle that enjoins manifestations of enforceability, or equivalently, the validation of trust. 780 APPENDIX As it stands, this new taxonomy aspires to host a normative continuum extending from normative reasons in their purest form to the highly abstract value of the rule of law. To illustrate the questions posed by these new distinctions Figure 1, below, serves to depict the space of answers to these questions and classifies four theoretical templates corresponding to the normative phenomena I have set out to explore, namely, Nexus Reasons, Thick Evaluation, Rationality and Law. The Nexus will occupy the depictive-guiding quadrant: full-fledged normative reasons are those facts that can simultaneously enable the action they favor to reflect our character in our actions and explain our acting. Moreover, this new map offers three more potential habitats raising the total number of available slots to four. Thus along with the Nexus quadrant this two-dimensional mapping features three more quadrants which, if ordered according to their proximity to the Nexus, they can be enumerated as the constitutive-guiding quadrant (thick evaluation), the depictive-constraining quadrant (rationality) and the constitutive-constraining quadrant (law). 781 782 Axis of Salience FACTS Guidance Constraint Favoring fact = Explanatory fact Requiring fact ≠ Explanatory fact M-role: F favors Φ-ing M-role: An attitudinal fact F requires the obtaining of a y l conditional (wide-scope) l a Evaluation: in context C, A is u t c responsive to reasons because she a Evaluation: in context C, A is t u actually treats the fact that F as a o rational because she actually n d reason to Φ o i e i t treats a basing principle as a r c r i a p c e reason to satisfy the conditional in D s i way Ψ n Explanation: in context C, F explains o i t why A Φs a u l Explanation: in context C, a a v E basing principle explains why A Ψs t c a p m I f o M-role: The fact that Φ-ing is M-role: The fact that the obligation s i x disposed to be publicly evaluated as to Φ is enforceable requires that A generous favors Φ-ing its enforceability be manifested or, y l l equivalently, that trust be a u Evaluation: in context C,if A Φs, A is t validated (wide-scope between c generous because she could treat a trust reaffirmation or trust f r e the fact that Φ-ing is disposed to be restoration) t n publicly evaluated as generous as a u o n reason to Φ Evaluation: in context C, if A Φs, c o i t t u A upholds trust because she u t o i t Explanation: in context C, the fact d s could treat the fact that the e n i that Φ-ing is disposed to be publicly r o obligation to Φ is enforceable as a r C a evaluated as generous could c reason to reaffirm trust s explain why A Φs i n Explanation: in context C, the fact o i t a that Φ-ing is supported by u l a reasons we could all share could v E explain why A reaffirms trust 783 BIBLIOGRAPHY Abizadeh, Arash, ‘Cooperation, Pervasive Impact, and Coercion: On the Scope (not Site) of Distributive Justice’ in Philosophy & Public Affairs (2007) 35 (4): 318–358 Asgeirsson, Hrafn, ‘Vagueness, Comparative Value, and the “Lawmakers’ Challenge”’ in Archiv für Rechts- & Sozialphilosophie (2012) 98 (3): 299– 316 Atria, Fernando, On Law and Legal Reasoning, Oxford: Hart Publishing, 2002 Armstrong, David, A Theory of Universals, Cambridge: Cambridge University Press, 1979 Armstrong, David, What Is a Law of Nature?, Cambridge: Cambridge University Press, 1983 Armstrong, D.M., C.B. 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