APA Newsletters Volume 06, Number 2 Spring 2007 NEWSLETTER ON PHILOSOPHY AND LAW FROM THE EDITOR, STEVEN SCALET ARTICLES BRIAN H. BIX “Joseph Raz and Conceptual Analysis” JULES L. COLEMAN “Law and Political Morality” TIMOTHY ENDICOTT “Interpretation, Jurisdiction, and the Authority of Law” KENNETH EINAR HIMMA “Revisiting Raz: Inclusive Positivism and the Concept of Authority” LIAM MURPHY “Razian Concepts” STEPHEN PERRY “Two Problems of Political Authority” © 2007 by The American Philosophical Association ISSN: 1067-9464 APA NEWSLETTER ON Philosophy and Law Steven Scalet, Editor Spring 2007 Volume 06, Number 2 relating to such theories. In particular, I will look at the role of conceptual analysis in legal theory, focusing on some recent FROM THE EDITOR work by Joseph Raz.1 I. Overview Edition in Tribute to Joseph Raz It was a commonplace in the history of jurisprudence to focus on the inquiry, what is law? It is worth taking a few moments Joseph Raz is professor at Columbia University Law School to consider the question more closely. and research faculty at Oxford University. His writings influence generations of scholars and his many students are now among First and foremost, there is a potential confusion (heightened 2 the leading scholars in philosophy of law. in English more than in other major languages ), as “law,” even if focused on matters jurisprudential (and not speaking of physical For this edition of the Newsletter we invited leading political laws, the laws of games, social conventions, etc.), can refer to and legal philosophers to analyze some aspect of Professor a number of different, if related, matters: most prominently, Raz’s ideas. Commentators include Brian Bix, Jules Coleman, the (legal or not) status of a system of norms, the (legal or not) Timothy Endicott, Kenneth Himma, Liam Murphy, and Stephen status of individual norms, and the determination of whether a Perry. The quality of these outstanding contributions speak for particular norm is a member of a certain legal system (the last themselves in the pages that follow. two are related questions, but occasionally distinct). The idea for this edition originated with co-editor John Coleman and Simchen (2003, 5) list eight distinct questions Arthur, who spent time with Joseph Raz as a visiting fellow at within “current debates in the philosophy of law”: Balliol College in 2004. I report with great sadness that Professor Arthur died this past January after a year-long struggle with (1) What is law? lung cancer. A respected philosopher of law in his own right, (2) What is a law? Professor Arthur published several books in this field and (3) What is the law? political philosophy generally, including Race, Racism, and (4) What is the nature of law? the Burdens of History (forthcoming, Cambridge University (5) What is the meaning of law? Press). Professor Arthur lived the life of the mind and enjoyed discussion of others’ philosophical ideas as much as his own. (6) What is the concept of law? He certainly would have been pleased with the outcome of this (7) What is the meaning of the concept of law? forum on the writings of Joseph Raz. (8) What is the meaning of “law”? The previous edition featured Joel Feinberg. The next The question, what is law? may be strange enough in edition will be a symposium on the writings of legal and political itself, though certainly no stranger than many of the questions philosopher A. John Simmons. central to other forms of philosophical inquiry (e.g., what is art? I also welcome Christopher Griffin as a new co-editor for what is knowledge? and what is democracy?). What strikes the the APA Newsletter on Philosophy and Law. Professor Griffin modern and philosophically minded readers as particularly specializes in democratic theory and is associate professor of odd about earlier discussions of the question, what is law? is philosophy at Northern Arizona University. that the theorists discussing the matter were willing to go on at Steven Scalet some length without feeling any need to ground the question Binghamton University (SUNY) or characterize the nature of the inquiry. Modern writers in this area have, fortunately, become much more conscious of the underlying methodological issues (e.g., Dickson 2001, Bix 2005b, Oberdiek & Patterson 2007). For example, a foundational figure in modern analytical ARTICLES legal philosophy (and the approach to legal theory known as “legal positivism”) is John Austin (1790-1859). Austin made numerous claims about legal systems and legal rules Joseph Raz and Conceptual Analysis (sometimes under the rubric of what is “law properly so called” and sometimes under the rubric of what did or did not fall Brian H. Bix within “the province of jurisprudence”) (Austin 1995, Lecture University of Minnesota V). His famous “command theory” of law held that laws were commands promulgated by a sovereign to its subjects (he also Introduction offered detailed analyses of what was meant by “sovereign” This article will focus on the long tradition of theorizing about the and “command”) (Austin 1995, Lectures I & V). Nonetheless, nature of law and contemporary methodological investigations it remains hard to determine whether he is purporting to make — APA Newsletter, Spring 2007, Volume 06, Number 2 — empirical claims or conceptual ones, and he rarely gives us any Many of the prominent modern legal philosophers (Hart, basis for judging (e.g., Cotterrell 2003, 81-83). e.g., 1961; Raz, e.g., 1996; and Coleman 2003) have argued There is a strangeness at the core of the enterprise: as here instead that theories of law do or should focus on the concept we have theorists seeking an abstract and universal theory of of law. Conceptual analysis has been central to analytical a changing social practice. Theories of the nature of law are, philosophy (e.g., Jackson 1998, Beaney 2003, Fodor 2004), after all, not like theories in the physical sciences, most of which as philosophers explored the “essential” or “necessary and are potentially falsifiable by experimentation or observation.3 sufficient” attributes of various concepts. Nor are theories of the nature of law even like claims in the An initial question that may come to mind is: Why study the social sciences, where supporting or undermining data might concept of law?; Why not just study law itself? After all, as Raz be found in either social science experiments or the “natural himself states: “Broadly speaking, the explanation of a concept experiments” within historical or recent observation. As shall is the explanation of that which it is a concept of” (Raz 1998b, be discussed, the connection between legal theory and real- 255). Is not focusing on the concept a poor substitute for the world data is simultaneously complex, uncertain, and highly real thing, or (to change the metaphor) a smoky glass through controversial. which to view our real object of interest? To ask the question, what is law? is to assume that there is Raz states (2005, 325) that concepts lie between words a sensible answer, which in turn seems to assume that there is and meanings on one hand, and the object(s) the concepts some object or category “law” one can discuss and describe pick out on the other (and in this assertion he seems to be (as well as assuming—perhaps less controversially—that there following conventional thinking). One can “have a concept” might be interesting things to say about that category or its without having detailed knowledge of the thing it is a concept contents). of (Raz 1998b, 256; Peacocke 1992), and one should not confuse If one were a Platonist, one might think that law referred what goes into a conventional explanation of a concept with to some Platonic Idea, for which the law of different countries what is entailed in a philosophical explanation of the concept and different times were merely imperfect instantiations or (Raz 1998b, 256). approximations. However, Platonists are not thick on the If one says that concepts lie between words and meanings ground, and they seem particularly rare in the area of theorizing on one hand, and the thing itself on the other, one might need about social practices and institutions. In fact, the jurisprudential to focus on the problems associated with the second term, the theorist most closely associated with metaphysical realism, thing itself. If the boundaries of “law” are not set by “the way Michael Moore (e.g., Moore 2000), stops well short of Platonism the world is” (as would be asserted by Platonists about “law,” about “law,” concluding instead that law might be some sort and also some versions of a “natural kinds” approach to “law”), of functional kind (Moore 2000, 294-332). Moore’s conclusion then what does establish those boundaries? The obvious answer is that it is unlikely that all legal systems share a common appears to be the concept of law itself. (Of course, by speaking underlying structure (as is true, roughly speaking, with natural of the concept, we mean indirectly the population(s) as a whole kinds), but that one might be able to point to certain human who developed the concept in question.) It is the concepts that goods that all legal systems uniquely or distinctively increase set the boundaries. (Moore 2000, 318-24). II. Raz’s Theory Natural kinds theory has been a popular middle ground for those who might be uncomfortable with full-blown Platonism In three recent works, Raz has set out in some detail his views but who want to ground the objectivity of discourse in some on theories of law, and conceptual analysis in the theory of law area. Traditional natural kinds theory, associated with the (Raz 1996, 2005, 2007). For Raz, general theories of law make work of Hilary Putnam (1975), Saul Kripke (1980), and Tyler universal claims, attempting to elucidate what is necessarily true Burge (1979), is a view about the relationship of conventional about the nature of law (Raz 1996, 2).