A new paper that may be of interest to those who follow literature in jurisprudence; it will appear in my forthcoming book, From a Realist Point of View (Oxford University Press, 2026), which will include previously published papers (some revised a lot), plus new material (including this chapter), all related to realism in legal and political theory. Here's the abstract:
I argue against the recent fad in American general jurisprudence of characterizing debates about the nature of law as debates about how “legal facts” (the content of law) are determined by “social facts” and “moral facts.” The reframing is due to Mark Greenberg in a 2004 article (“How Facts Make Law”), but was popularized by Scott Shapiro in a 2011 book (LEGALITY).
In Part I, I argue that (1) Greenberg’s reframing distorts the historical debates in jurisprudence (which were about validity, not content); (2) Greenberg’s own view of legal content cannot explain how law guides conduct outside the courts and, in any case, is unmotivated by any realistic considerations; and (3) Greenberg demands that legal philosophers answer a metaphysical question about determination that neither Saul Kripke (in philosophy of language) nor Nelson Goodman (in philosophy of science) could answer on the terms Greenberg proposes and which are, in any case, irrelevant to important jurisprudential questions.
In Part II, I argue that (1) Shapiro’s adoption of the Greenberg framing of the core questions of general jurisprudence erases the major natural law positions in the field (e.g., those of Finnis and Murphy), and results in a version of “positivism” that major legal positivists (e.g., Hart) do not accept; (2) Shapiro’s explanation of how answers to questions about the nature of law matter for how judges should decide cases is confused; and (3) Shapiro is incorrect that Hart commits a “category mistake.” At various places I note the ways in which Shapiro, nominally a legal positivist, in fact commits to views characteristic of anti-positivists, like Dworkin and Greenberg.
It would really help if American legal philosophers knew more about the history of their subject and engaged more with scholars outside the Anglosphere.
Recent Comments