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May 27, 2014


Steve Schaus

I have a quick comment on your first observation. I agree with you (and Bix, e.g., pp. 5-6) that Greenberg might be clearer about his methods and what he counts as success. But I'm not so sure that Greenberg rejects the standard of success you mention. There's evidence that Greenberg, too, thinks an account of legal facts (i.e., legal obligations, rights, etc.) should, among other things, fit and explain what we're ordinarily inclined to say about legal facts and the significance we take them to have (to paraphrase Scanlon on accounts of blame).

Why think so? The basic reason is that Greenberg seems to refine his theory in response to concerns about usage and expert judgment. He's most explicit about it on page 1307 (nt. 41), where he invokes "normal parlance" as a reason to prefer the thesis that legal obligations are certain all-things-considered (not merely pro tanto) moral obligations. (I don't think Greenberg is right about normal parlance on this point, but put that aside here.) Elsewhere Greenberg is less explicit, but seems sensitive to concerns about usage and expert judgment. For example, Greenberg revises the moral impact theory to avoid the implication that we have no legal obligations not to kill or harm ("In that case, the Moral Impact Theory would have the consequence that some of what we take to be paradigmatic legal obligations...are not legal obligations at all" (1320, and see generally pp. 1319-23)). And Greenberg argues that the moral impact theory is compatible with the obvious fact that interpretive standards vary across legal systems (e.g., pp. 1333-1334). These passages aren't conclusive, but they suggest that Greenberg does aspire to "do some justice to our ordinary or commonly shared ideas about law..." (as you put it).

What about the text that points the other way? Greenberg seems to say that we shouldn't "consult English usage or even lawyers' intuitions" to test a theory of legal facts. But I think the point he's making is slightly different. Greenberg writes: "I want to make a fairly banal methodological point. Ultimately, the way to determine whether there can be truly evil legal norms is not to consult English usage or even lawyers' intuitions. True theories often have counterintuitive consequences..." (1338). Here Greenberg might make the strong and surprising claim you suggest: that usage and expert judgment impose no serious constraint on philosophical theories of legal facts (and hence pose no serious objection to his conclusion that there are no genuine legal obligations to do evil). But he might make a weaker and more familiar claim: that sometimes, when philosophical theory conflicts with usage or expert judgment, we should go with theory (and hence we should go with the moral impact theory despite the theoretical costs it incurs by implying that there are no genuine legal obligations to do evil). And this weaker claim is compatible with the claim that usage and expert judgment impose serious constraints on philosophical theories of legal facts in general.

The truth, of course, is that I'm not sure what standards of success Greenberg aspires to meet. A more interesting question (to me) is whether the moral impact theory might in fact succeed as a theory of legal facts that fits and explains what we're inclined to say about them.* You think the answer is no: you suspect Greenberg "has to" reject that standard because he accepts too much that would violate it. (So the substantive question isn't entirely distinct from the interpretive question.) I am more optimistic, though I'm not sure Greenberg's version of the moral impact theory is quite right. (For example, another version of the moral impact theory, inspired by ideas about the metaethics of obligation like Stephen Darwall's, might say that legal obligations are genuine moral obligations distinguished by the fact that they are moral obligations that legal institutions have the distinctive standing to hold you to. I also think the moral relationships generated by things like promises and meetings among roommates to set the house rules provide useful tools for thinking about the moral impact theory. Dworkin (JFH), Waldron ("Jurisprudence for Hedgehogs," MS), and Hershovitz ("The End of Jurisprudence," forthcoming) make similar points).) But these are issues I won't address in this (already long) comment!

*That's not, of course, the only standard. Like you, I would like to know to how the moral impact theory identities legal and political institutions; whether it depends on questionable claims about their essential functions; and to what degree it's compatible with different views in metaethics. And then there's the question about whether, on balance, a worked out moral impact theory offers more than its comprehensive alternatives.

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