Brian Leiter's Legal Philosophy Blog

Some questions and doubts about Greenberg's "Moral Impact Theory of Law"

(The following grew out of a discussion with two Chicago students doing an "independent study" in advanced general jurisprudence:  3L Courtney Cox and 2L Phil Smoke.  They are not responsible for what follows, but I was helped by discussing the paper with them.)

Mark Greenberg (UCLA) has recently published a paper that synthesizes some of his earlier work and articulates his positive view in some more detail than previously.  He calls his view "The Moral Impact Theory of Law," though for reasons I will make clear, I'm not sure this amounts to a theory of law except in some odd stipulative sense.  (I will note my agreement with the criticisms articulated by Brian Bix [Minnesota], especially his observation that it is not controversial that the actions of legal officials can alter our moral obligations, but it is controversial, and unmotivated, to say that only the resulting moral obligations are the actual content of the law.  I will try not to belabor that point, but rather to raise some other doubts.)

A few preliminary observations:

1.  It's unclear what the criteria of success are for a theory of law on Greenberg's view.  Positivists from Hart onwards wanted to do some justice to ordinary or commonly shared ideas about law, making explicit what was inchoate and correcting various tensions in ordinary thought and talk about law.   (See the discussion in Langlinais & Leiter.)  It's plain that this is not Greenberg's criterion.  Indeed, he specifically disowns considerations of "English usage or even lawyers' intuitions" (1338), and he has to since he claims that on his view "the law can never include truly evil norms," among other wholly counter-intuitive claims (1337).  He says that a "true" theory can have "counterintuitive consequences," and justifies that by noting that "a great deal fo what we now think about the world and about human beings would once have been thought to be absurd" (1338).  That's true, but we know roughly what the criteria of success were for counterintuitive physical, biological and psychological theories, e.g., their explanatory and predictive power.  Greenberg's view has no explanatory power as far as I can see (it obviously does not aspire to predictve power).  I return, below, to what little he says about the supposed virtues of his theory (see [B], below).

2.  Greenberg's view depends on a quite extravagant form of moral realism, which is undefended (and, in my view, could not be defended).  And this extravagant and undefended moral realism leads him to say things like:  "it is a general moral truth that, to the extent that people have equal opportunity to participate in procedures of governance, they acquire moral reasons to comply with the decisions that are reached through those procedures" (1313).  That this "general moral truth" is contested by many political philosophers does not give Greenberg pause.  I was also genuinely shocked to see Greenberg say "that much of our concern with law presupposes that...[moral] skepticism [or anti-realism] is false" on the grounds that the anti-realist believes that "people have interests and desires and wield raw power, but there is no reason to be concerned with unfairness, inequality, cruelty, or injustice" (1308 n. 43).  As fraudulent libels of moral anti-realists go, this one is at the head of the class!  I have to wonder whether bad student editing played a role in this strange footnote.

3.  Greenberg repeatedly makes claims about the "functions" of law and about law's "nature," but offers no defense of them, no explanation of how it is an artifact can have essential functions or even a nature.  Claims about what seems "natural" or "plausible" or "intuitive" do far too much work in this paper, and most of the claims said to be "natural" or "plausible" or "intuitive" do not seem to me to be anything of the kind:  they range from the idiosyncratic to the debatable.  (A partial catalogue of some of the astonishing, and undefended, claims of this kind:  "it is part of the nature of law that a legal system is supposed to change our moral obligations to improve our moral situation" [1294]; "a legal system, by its nature, is supposed to change the moral situation for the better" [1322]; while allowing that, in fact, "it is controversial what the functions of law are, or even whether law has functions" [1339] he then claims "for purposes of argument" that "settling disagreements is an important function of law" [1339] and that it is "at least as plausible" that law's other functions include "that government coercion is used only in accordance with past political decisions," that law is "acting for the public good," and (of course) "improving our moral situation" [1339].)

 Now some more specific questions and doubts:

A.  Greenberg claims that most theorists accept "the Standard Picture" according to which "the content of the law is primarily constituted by linguistic (or mental) contents associated with the authoritative legal texts" (1296) or, later, "working out an appellate decision's contribution to the law [is] a matter of identifying an authoritative text...and then extracting its linguistic content" (1316).     In fact, I can not think of any theorists who accept "the Standard Picture" so defined.  Greenberg's confused criticism of legal positivism brings this out.  Greenberg writes:

[L]egal positivism does not specify how social facts determine the content of the law.  To say that the content of the law is determined, at the most fundamental level, by social facts alone does not yet tell us, for example, how statutes contribute to the content of the law.  One manifestation of this gap is that positivism by itself does not yield an account of statutory interpretation--of how to discover a statute's contribution to the content of the law.  (1298)

In fact, it is precisely a virtue of the positivist theory that it does not answer this question generally, since what counts as proper statutory interpretation varies by legal system:  among the pertinent facts in a given legal system are often facts about what ways of extracting content from statutes are permissible.  By contrast, Greenberg's view simply supplants whatever the local norms of statutory interpretation are in favor of a one-size-fits-all-model that claims "the question of legal interpretation" is always "what is morally required as a consequence of the lawmaking actions" (1303)--or later, "the contribution of a statute to the content of the law will depend on the on-blanace best resolution of conflicts between moral considerations" (1330)--views of statutory interpretation that are, I would venture, unrecognizable to most judges in most legal systems.

It bears noting, by the way, that even on Greenberg's view "the linguistic content of...texts is...one relevant consideration" in figuring out "the moral impact of" what the legal institutions have done (1303) and, indeed, he argues later that in some circumstances "the linguistic content of directives will be morally binding" (1315).  

B.  Greenberg adduces a few considerations that purportedly favor the "Moral Impact Theory" as a theory of law, rather than of something else.  First, he says, "it is plausible [there's that word again!] that moral reasoning has a place in legal interpretation" (1304).  Everyone agrees that moral reasoning has "a place in legal interpretation," what is in dispute is whether that place is necessarily required by the law.  Second, Greenberg says, "legal systems treat legal obligations as genuinely binding obligations that are generated by the legal institutions" and claims his view "vindicates this treatment," whereas the positivist theory allows that "it can be true that one has a legal obligation despite the fact that one has no [genuine] obligation" (1304).   I take it "genuine" means "moral obligation."  Assuming that, Greenberg gets it exactly backwards:  it is a virtue of a theory of law that it does not entail that every legal institution's claim to have generated a genuine obligation is vindicated.  Disabusing people of the false notion that the law's commands are morally obligatory is both a practical and theoretical virtue of the positivist theory, as Hart noted long ago (cf. The Concept of Law, 207-212).  Third, Greenberg says his view "makes it easy to explain our dominating concern with law" (1304) since, "If the legal institutions change what we are obligated to do, it is vital to work out that change" (1305).  But this just returns us to Bix's point:  it is true on everyone's view that what legal institutions do may affect our moral obligations, and that is one reason for being concerned with law.  There are other reasons we are concerned with law, and other more obvious ones I would say:  for example, the law can help us pursue our goals; the law may sanction us if we act in certain ways; and so on.  All these mundane reasons for being interested in law are consistent with the positivist theory.

C.  Greenberg is aware that his view, even as an account of a stipulative sense of "law," makes it puzzling what a legal institution is:  it can't, obviously, be an institution created by the law, since the content of the law is just the moral obligations that result from what pre-existing legal institutions do.   Greenberg takes the issue up at 1323 ff., but tells us very little.  He notes, consistently with his earlier ex cathedra pronouncements, that it is "a necessary condition on a legal institution...that it be an organization that, by its nature, is supposed to improve the moral situation" (1324).  One might think that is also true of, e.g., religious institutions, universities, reformatories, hospitals, and many other "organizations."  Greeneberg recognizes that this "necessary condition" radically underdetermines what a legal institution is, but then invokes the fact that there is "a great deal of consensus about which institutions are legal institutions" (1325)  That's true, something that positivist theories actually explain.

Priel on "Towards Classical Legal Positivism"

Dan Priel (Osgoode) has posted a draft of this paper on SSRN.  I assume it's an early draft, since there's lots of rhetorical excess and overreaching, and associated carelessness, but there is a core idea that is interesting and prima facie plausible and deserves attention and development. 

The idea is this:  the "classical" positivists like Hobbes and especially Bentham "saw theorizing about law, just like theorizing about morals, as part of theorizing about nature and about human nature in particular" (4), and in this respect, they have much more in common with both contemporary and classical natural law theorists.   By contrast, contemporary legal positivists (Hart and progeny) do not have developed views of nature and human nature which inform their defense of positivism as a theory of law.   Priel sometimes overstates this, since I assume we know, by now, that Hart operated against a background set of metaphysical assumptions (a kind of moral anti-realism, non-cognitivism about moral semantics, some views about human nature apparent in his conception of the 'minimum content of natural law' and so on), but it is certainly right that the core defense of the positivist theory is that it explicates what the "ordinary" man familiar with the "modern municipal legal system" knows about law, however inchoately:  in that regard, it is a legacy of the approach to philosophy prevalent in England at the time Hart wrote.   Priel is sometimes weirdly dismissive of this project (it is mere "empirical observation or a linguistic stipulation" [20], and he reduces it, wrongly, to a mere concern with questions of 'legal validity'), but he's certainly right it's rather different than Bentham's approach (Priel, 7-9), which assumes the truth of psychological hedonism, and then proceeds to evaluate rules, legal or 'moral,' on the basis of how well they maximize pleasure or pain.  The separability thesis, on this way of looking at things, is essential for the normative project of opening up the law to utilitarian criticsm.  This isn't quite how Priel puts thing, but I think this is the jist of the idea.  There's some unclarity about the precise connection between the theory of human motiviation and the positivism in Priel's presentation, but I think he's right to understand Bentham's legal positivism as a complement to the theory of human nature (unfortutanely, a false theory of human nature, which might, of course, give someone pause about this kind of approach).   So Priel's paper invites us to ask:  what might a theory of law look like that tries to locate it within a broader picture of what the world, and people, are really like?  Natural law theory proceeds that way, so too classical positivism (as Priel argues), and so, too, one might add Scandinavian Realism in some measure, though without a theory of human nature, per se.

I'll leave to others to correct some of the rhetorical excess and careless of the current draft of the paper, and just focus, for obvious reasons, on the surprising discussion of my views at 21-24--surprising, in part, because Priel is often sympatico with my views in his other work, but here makes such a hash of what I've written that I'm not sure what to think.  It's just false (indeed, obviously false) that I try "to ground legal positivism on metaphysical grounds similar to those of Hobbes and Bentham" (21).  Hobbes and Bentham have views about human nature; I do not suggest that a view about human nature supports legal positivism, but rather that a view about correct philosophical methodology (methodological naturalism) does, as an a posterioi matter. 

Priel, however, expresses the bizarre view that methodological naturalism in my sense "is either uninteresting or false" (22).  Certainly proponents of a priori methods in philosophy don't think the naturalist challenge is "uninteresting," though they would agree it is false!  Priel thinks that scientific method involves "drawing inferences only if they follow logically from the data or if they are supported by statistically significant evidence" (22).   We've learned the lesson over the last forty years that methods that work in the various sciences are not unitary, but no one, of course, thinks they are exhausted by this characterization, which puts no constraint on what counts as data, the methods by which we ascertain epistemically relevant data, and what inferences are warranted from such data.   The discussion that follows is such a mess I'm not sure where to begin.  But when Priel arrives at the conclusion that "there is no purely 'philosophical' argument, becuase there is no pure 'philosophical' domain," he sounds, alas, like my methodological naturalist.  But Priel thinks this shows naturalism is substantive not methodological, even though no substantive thesis about what there is or what we know is on offer.  I hope Priel will simply purge these pages from the final version of the essay, since they are confused and irrelevant to the interesting, 'core' idea, discussed above.

Simpson's "The Common Law and Legal Theory"

A couple of years ago, Leslie Green and I had a spirited exchange in the pages of the Times Literary Supplement with A.W.B. Simpson about his hatchet job on H.L.A. Hart, delivered under the guise of a review of Nicola Lacey's fine biography.  Like some other reviews of Hart's biography--I am thinking especially of Thomas Nagel's sanctimonious review of the same book in the  London Review of Books--Simpson's sneering told us more about the reviewer than the book.  In any case, it left me with the impression that this was someone not at all serious about legal philosophy who, at the same time, was quite embittered about Hart's fame and success.  (This is odd, given Simpson's own great professional success and his fine reputation as a legal historian.)

In any case, I have been thinking this summer about what Dworkin calls the problem of "theoretical disagreement" in Law's Empire, prompted by the paper by my friend Scott Shapiro on the Hart/Dworkin debate in the new CUP volume on Dworkin edited by Arthur Ripstein.  (I may write about Ripstein's introduction to that volume at a later date.)  In reading around, I was led back to the old and well-known paper by Simpson on "The Common Law and Legal Theory," which appeared in the Oxford Essays in Jurisprudence, 2nd Series that he edited in 1973.   The paper has been much cited, and I have a dim recollection of having read it in law school 20 odd years ago.  In any case, I re-read it today.

I am struck by what a bad paper it is and puzzled, accordingly, by why it is cited so often.  To be clear:  it is well-written, learned, and lucid.  But what it says about the positivist theory of the common law is uncharitable in the extreme.  The paucity of citations to Hart's The Concept of Law is perhaps the first indication that this is meant to be an indictment, not a scholarly assessment, of the positivist theory of the common law. 

Simpson claims, first, that positivists think "the common law is a set of rules" (here he echoes the early Dworkin) which "owe their status...to the fact that they have been laid down" (80), and here at least he can cite some pertinent passages from Austin, John Chipman Gray (!), and Kelsen.  Simpson takes the common law, by contrast, to consist of "customary" rules, and so he thinks the positivist account "has to be emasculated until it means only that the norms of customary law are the products of acts of will, even though these acts of will are not directed to the making of law at all" (81).  He is silent about the obvious alternative possibility (apparent to a reader of Hart) that the positivity of law consists not in its being the product of intentional human action (of someone  "laying down rules") but rather in its being a "positive" fact, namely, that the law is what it is in some community in virtue of the observable conventional practices of humans in that society.  More on that thought in a moment.

Simpson claims, secondly, that positivists conceive "of law as a sort of code" (81). Here he does not even try to cite textual evidence, since he has simply made this comitment of positivism up out of whole cloth.  (Am I wrong?  What could Simpson be thinking of?)

Simpson's preferred view is that the "common law" is a kind of "customary law" (91 ff.).  (Readers of Hart must surely be puzzled at this point as to why Simpson thinks he is having a dispute with positivism.  But it gets worse.)   Simpson describes a custom as a practice "which is regularly observed and has been regularly observed for some time in a group, and which is regarded within the group as the normal and proper practice" (92) which will remind any informed reader of Hart's account of a social rule, though perhaps less developed.  Simpson then poses the strawman objection that rules of the common law, like the rule against perpetuities, can not be "customs" since they are not "putative descriptions of the customary practices of Englishmen" (92), which must surely be true.  But there is another possibility that a scholar writing 12 years after The Concept of Law might have been expected to note:  namely, that the customary practice is not that of citizens, but of certain officials, namely, their practice of treating certain kinds of dispositions of property after death as legally valid, others as not. 

This brings us to the key passage in Simpson's article (p. 94):

[I]t seems to me that the common law system is properly located as a customary system of law in this sense, that it consists of a body of practices observed and ideas received by a caste of lawyers, these ideas being used by them as providing guidance in what is conceived to be the rational determination of disputes litigated before them, or by them on behalf of clients, and in other contexts.

But is this not just to say that the common law consists of those norms validated by the social rule constituted by the practice of "officials" (the "caste of lawyers") in a particular community?  Perhaps the idea that the content of this rule reflects "what is conceived to be the rational determination of disputes" means that this describes a version of Soft Positivism, but that too would have been congenial to Hart.  But the puzzle remains:  why does Simpson think any of this states a dispute with Hart's theory of law?

There is a further irony on this page, namely that Simpson formulates his objection to positivism by suggesting that,

Formulations of the common law are to be conceived of as similar to grammarians' rules, which both describe linguistic practices and attempt to systematize and order them; such rules serve as guides to proper practice since the proper practice is in part the normal practice; such formulations are inherently corrigible, for it is always possible that they may be improved upon, or require modification as what they describe changes.  (94)

But surely, one thinks, the "positivist" theory of grammar is the correct one! Grammatical rules emerge from the grammatical practices of speakers of a language, practices which (in Hartian terminology) speakers accept from an "internal point of view," i.e., which the speakers take as obligatory as evidenced by the fact that they appeal to them in sanctioning deviation and commending conformity.  (The preceding is true, I take it, even if a broadly Chomskian/nativist account of the disposition to conform to grammatical rules is the correct one.)   So if, as Simpson claims, common law rules are "similar to grammarians' rules," then the positivist theory of the common law is precisely the one Simpson himself endorses!