I. Introduction
There has been a recent turn toward a new form of nonpositivism in Anglo-American jurisprudence.Footnote 1 This trend is not a return to classical natural law theory. It is an extension and refinement of Dworkin’s rejection—articulated in Justice for Hedgehogs—of the idea that law and morality are distinct normative orders.Footnote 2
This turn includes, among others, Mark Greenberg and Scott Hershovitz.Footnote 3 Greenberg’s and Hershovitz’s theories are not identical.Footnote 4 But despite their differences, Greenberg and Hershovitz share a rejection of legal positivism’s claim that the validity of legal norms need not depend on moral considerations.Footnote 5 I will thus refer to their views, jointly, as “the New Legal Anti-Positivism” (or “NLAP” for short).Footnote 6
In this paper, I offer a partial critique of—rather than a decisive argument against—NLAP.Footnote 7 I look at NLAP through the perspective of comparative jurisprudence—the study of the philosophical assumptions that underlie legal cultures. This perspective shows that NLAP is distinctively American: it reflects much of American legal practice but fits less well with the cultures of other existing legal systems. As I will argue, there are important reasons for doubting the plausibility of NLAP beyond contemporary American law.Footnote 8 To the extent that general jurisprudence attempts to offer a general theory of law, theories that accommodate variations across legal cultures are better than theories that cannot. On this score, other jurisprudential theories fare better than NLAP. This is not sufficient to establish the falsity of NLAP. But it is a weighty consideration against its general plausibility.
Generality in jurisprudence is a scalar property. It is perfectly acceptable, depending on a theory’s aims, for it to have a broader or narrower scope. There is no reason, too, why narrower theories (such as theories that aim to elaborate a general conception of law that, at an abstract level, underlies the legal practice of a particular jurisdiction) would be undesirable. It could also be the case that a fully general jurisprudence (such that it captures every single instantiation of law across time and space) will not be particularly interesting or theoretically useful. The methodological point this paper makes is not that jurisprudence should be maximally general. It is that there must be a certain consistency between the data, examples, illustrations, intuitions, and observations that one relies on to give theoretical plausibility to any given view and the scope of the latter. In this sense, my critique of NLAP is, in simple terms, that it makes general claims about the law which typically rest on illustrations, observations, background intuitions, and examples from a specific and idiosyncratic legal system that are not easily replicated in other salient legal systems. For a theory that makes general claims about law to have general explanatory power, the illustrations and observations that the theory relies on must be of a suitable level of generality.
Here is a roadmap. Section II describes Greenberg’s moral impact theory and Hershovitz’s conception of law as a moral practice. Section III introduces the idea of comparative jurisprudence and shows why it is problematic to rely on observations about a single legal practice to support or give plausibility to general theories. Section IV relies on comparative jurisprudence to examine the connections between NLAP and American legal culture, and highlights some contrasts between the latter and the culture of salient civil law systems. Section V argues that NLAP’s general claims about legal practice rely on a narrow set of observations, largely drawn from American legal practices, that are inconsistent with parallel observations about the practices of modern civil law systems. Section VI shows that other jurisprudential theories on offer can more effectively account for these variations across legal cultures.
II. The New Legal Anti-Positivism
A. The Moral Impact Theory
Facts about what legal officials have said and done in the past are insufficient, according to Mark Greenberg, to determine the content of the law.Footnote 9 Many things are said and done by multiple people at different stages of legislation, regulation, and adjudication. There are many possible mappings from complete sets of these facts or “law practices” to legal content, but only one (or at least some) of them can be correct.Footnote 10 After all, most lawyers and theorists seem to assume that there can be determinate legal content—a determinate set of legal propositions. If different models generate different sets of propositions, then most candidate models—perhaps, all but the correct one—that promise to derive legal content from legal practices must be discarded as incorrect.Footnote 11 Something beyond social facts must determine the correctness of these models, and therefore which social facts are relevant, and how, to determine the content of the law.Footnote 12 Moral facts are potential candidates to play this role, because these facts are, precisely, facts about which “law practices” might be relevant. Greenberg uses the example of democratic considerations. Democratic considerations can support a particular model of a statute’s contribution to the content of the law. They can rationally determine what facts about the legislative process impact the content of the law, and how.Footnote 13 Legal norms are thus determined by moral considerations.
There is a short step from the view that moral considerations determine the content of the law to the view that such content is itself moral. This is precisely what Greenberg’s moral impact theory suggests. On his view, legal norms are the moral norms that result or are the “moral impact” of the actions of legal institutions, in the “legally proper way.”Footnote 14 The law is the part of our moral rights and obligations generated by legislation, adjudication, and so on.Footnote 15
By moral, here, Greenberg means “genuine, all-things-considered, practical obligations.”Footnote 16 Legal institutions’ actions have a real impact on what we genuinely ought to do.Footnote 17 And that impact is all things considered: for Greenberg, there is no distinction between what we morally ought to do and what we ought to do, all things considered. For him, it is “fundamental to the nature of morality” that it already takes into account all other (non-moral) reasons. An all-things-considered moral obligation just is an all-things-considered obligation.Footnote 18
Thus, if the law is supposed to create genuine obligations, it is supposed to create all-things-considered moral obligations.Footnote 19 The law, in other words, is supposed to be all-things-considered genuinely binding.Footnote 20 In support of this claim, Greenberg suggests that it is closely aligned with Raz’s argument that law must necessarily claim legitimate authority,Footnote 21 and that it “offers an attractive explanation of how legal systems differ from the systematic exercise of brute power.”Footnote 22 Moreover, law does not see itself as subordinate to morality.Footnote 23 In the instances where law recognizes moral norms, it contains “specific morally-based exceptions to otherwise applicable legal norms.”Footnote 24 In law’s own self-understanding, then, it would be imposing genuine, all-things-considered obligations.Footnote 25 This vindicates, in Greenberg’s view, the claim that legal norms just are moral norms whose content is rationally determined by moral considerations.
B. Law as a Moral Practice
Scott Hershovitz argues that the question that legal positivism aims to answer—what makes something a valid legal norm of a legal system—is not particularly significant, as a philosophical matter. We can talk about legal norms in all sorts of different ways. Sometimes, we talk like legal realists; sometimes, like legal positivists; sometimes, like natural lawyers. If we are clear about what we mean, all these different forms of talk can be useful for different purposes.Footnote 26 Hershovitz argues in Law Is a Moral Practice, however, that there is no single set of norms that counts as the law of a certain legal system.Footnote 27 In this respect, Hershovitz could be interpreted as an eliminativist. For him, the central philosophical questions raised by law are not about which norms count as legal. Instead, they are questions about the role that legal practices play in creating, rearranging, and resolving disputes about moral (understood, again, as genuine) rights and obligations.Footnote 28 The practices of legislation, regulation, and adjudication aim at adjusting what we owe to each other.Footnote 29 There is no distinct domain of legal normativity, and law is just one more social practice that attempts to change our moral rights and obligations.Footnote 30 When we promise and posit rules in ordinary life, we aim to shape the norms that govern our lives—by changing the facts in ways that make a normative difference—without thereby creating new distinct normative orders. The same is true of law.Footnote 31
Although we can talk about legal practices in different ways, Hershovitz believes that the most significant understanding of legal norms concerns itself with the norms that agents have a moral right to get enforced by courts.Footnote 32 The enforceable rights we have might not be the enforceable rights we ought to have, given the obvious possibility that legal institutions might not get things right all the time. Still, to figure out which rights we actually have, given the history of our legal practices, judges must rely on moral reasoning.Footnote 33
For answering these questions, legal positivism will not do. The norms that courts aim to enforce are the norms that are authoritative, and questions about authority are moral questions rather than questions of social fact alone.Footnote 34 There are questions about the moral difference that the enactments and decisions reflected in legal materials make.Footnote 35 The central question for lawyers and judges is not about formal legal validity or even about the grounds of law.Footnote 36 It is instead a question about the moral rights and obligations that people have, given the history of our legal practices, and that courts ought to enforce.
C. Convergence
The views I have briefly presented are not identical. Greenberg’s theory is concerned with questions about the metaphysics of legal content. Hershovitz’s goal, instead, is to argue that legal practices aim at changing our moral rights and obligations, and that we can understand that aim without assuming the existence of a distinct domain of legal normativity.
Still, these views share some central commitments that warrant treating them together. First, on both views, questions about what legal rights and obligations we have are moral questions. Second, for both Greenberg and Hershovitz, legal reasoning is (simply, or a form of) moral reasoning. Finally, on both views, there is no distinct domain of legal normativity that stands independently of moral considerations. Thus, Greenberg and Hershovitz are both antipositivists: they deny that “in any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits.”Footnote 37 This warrants the joint label.
Moreover, NLAP is new because it differs from the standard antipositivist view prevalent during much of the history of Western legal thought—natural law. The dispute between the classical natural law tradition and legal positivism, best understood, is not a dispute about legal validity and much less about legal content.Footnote 38 Instead, it is a dispute about the centrality of formal legal validity for a complete theory about the nature of legal systems and norms: while legal positivists think it is central, natural lawyers think it is only a small part of the inquiry.Footnote 39 The other—and most important—part is connected, according to natural lawyers, to questions about practical reasonableness, the functions of law, and the bearing of these issues on the (genuine) bindingness of legal norms.Footnote 40 In this regard, natural lawyers can accept that formal legal validity (as opposed to bindingness) is grounded in social facts—which is why Hart, for example, was adamant that natural law theories like Finnis’s could be compatible with a positivist conception of legal validity.Footnote 41
NLAP, on the other hand, would deny the thesis that legal validity or legal content can ever turn on social facts alone. Greenberg would suggest that only moral facts can explain which social facts matter to determine the content of the law, and why. And Hershovitz would suggest that the norms that are properly enforced in court are those that are morally authoritative, and this never turns on social fact alone. In these ways, NLAP denies the legal positivist claim that legal validity is a real thing that depends at the most basic level on sources, not merits.Footnote 42 And this denial is different, in important ways, from natural law theory.
NLAP is new even with regard to more contemporary versions of nonpositivism, like Fuller’s, Alexy’s, and (arguably) Dworkin’s, at least until Law’s Empire. Footnote 43 NLAP’s novelty vis-à-vis these views is most clear in its claim—shared with the Dworkin of Justice for Hedgehogs—that all legal rights and obligations must necessarily be moral rights and obligations.Footnote 44
One final important point about both Greenberg’s and Hershovitz’s theories is that they make general claims about law as such. Greenberg, for example, argues that—given his views about rational determination—legal practices “cannot themselves determine the content of the law,” and does so on the basis of what he characterizes as “very general philosophical considerations.”Footnote 45 He also describes his work as addressing questions about “the nature of law,”Footnote 46 claims that moral facts (such as democratic considerations) “are relevant in all legal systems,”Footnote 47 and argues against Hartian positivism on the grounds that “if an account of what, at the most basic level, determines legal facts is true in any possible legal system, it is true in all possible legal systems.”Footnote 48 In a similar vein, Hershovitz—from the very title of his book—makes general claims about law rather than specific claims about American or even common law. In his book, he says he wants “to show the appeal of the idea that law is a moral practice.”Footnote 49 When explaining that view, he suggests that law (not American law, but law) “aims at creating, extinguishing, enforcing, articulating, arranging, and rearranging our moral rights and responsibilities.”Footnote 50 When discussing positivist and antipositivist views, similarly, Hershovitz claims that their virtues are how they explain certain features of law (in general).Footnote 51 All of Hershovitz’s arguments against the idea that there is a distinct domain of legal normativity are arguments about that idea in general. Footnote 52 And, finally, all of Hershovitz’s arguments about how law settles moral disagreements are arguments about “legal systems” as such, rather than about the American legal system.Footnote 53
III. Comparative Jurisprudence
General jurisprudence concerns itself with multiple questions. But its aim is typically understood as general precisely in the sense that it should answer these questions across different legal systems. Footnote 54 This is the spirit in which I interpret the claims made by NLAP that I referenced in the previous paragraph.
At the same time, though, legal cultures have their own specific ways of thinking about law, legal institutions, and legal argument. One can see this across space and time. For instance, arguments about natural principles of justice played an important role in the practice of American lawyers and judges earlier in history. Today, such arguments play almost no role, at least when presented as such.Footnote 55 One characterization of what’s going on in this example is that American lawyers’ and judges’ conception of law has changed over time.Footnote 56
Comparative jurisprudence—an approach to comparative law articulated by William Ewald—emphasizes the significance of this phenomenon.Footnote 57 According to comparative jurisprudence, the study of comparative law requires studying the different cognitive structures, cultural traditions, and mentalities underlying legal systems.Footnote 58 Understanding a legal system requires grasping jurists’ shared understandings and philosophical assumptions.Footnote 59 These include ideas about the concept of law and about acceptable modes of legal argument.Footnote 60 Law, on this view, is a practice in which people engage according to certain views and narratives about the practice itself.Footnote 61
Comparative jurisprudence, by focusing on these views, can explain similarities and differences between legal systems that result from legal cultures’ underlying philosophical commitments. For example, as Atiyah and Summers note in their study of legal reasoning in the United States and England, these two legal systems approach the binding force of precedent differently—with stare decisis having a stronger force in the English legal system.Footnote 62 The volume of case law, the proportion of dissenting opinions, and the relative prevalence of plurality opinions partly explain this difference.Footnote 63 But its deeper explanation is that there are central differences “in legal style, legal culture and, more generally, the vision of law which prevails in the two countries.”Footnote 64 Atiyah himself makes a similar point elsewhere: the scope and weight of formal reasons turn on jurists’ commitments about what law is.Footnote 65 Some differences between American and English law thus result from differing visions of law and of what counts as legal. Footnote 66
My point here, though, is not just that jurists’ jurisprudential commitments sometimes impact the content of law. Rather, I want to suggest that jurisprudential theories are themselves impacted by legal cultures’ underlying conception of what law is. Theories reflect the contingent commitments of the legal cultures within which they arise.
The fact that legal cultures’ commitments causally impact jurisprudential theories does not immediately threaten the validity of those theories. Thus, I don’t take this fact to warrant skepticism about specific theories or about jurisprudence in general.Footnote 67 Still, we should always be aware of the possible connection between the contingent features of specific legal cultures and the jurisprudential theories produced within them, particularly when such theories don’t adopt a more comparative perspective. This awareness, in turn, should lead us to critically evaluate how jurisprudential theories fare when we adopt a broader perspective and contrast those theories with the features of other legal cultures.
The point is not that relying on examples or on background assumptions drawn from a single jurisdiction necessarily undermines a theory’s generality. Any legal theory must, to some extent, rely on the practices of specific jurisdictions (typically, those with which the theorist is most familiar). The problem arises when observations that are local or parochial are used to establish or motivate the plausibility of a general view without considering whether comparable observations from other systems might challenge it. Of course, if we believe a theory is true for independent reasons, contrary examples can always be accommodated. My concern with NLAP is that Greenberg and Hershovitz draw on illustrative examples and background intuitions from American law to make their theories initially plausible, yet do not examine whether those examples sustain general claims about law by considering parallel observations in other legal systems.
Although I will come back to this later, for now note that, at critical junctures, both theorists rely on particular observations or background intuitions from American legal practice.
Greenberg, when offering an “informal introduction” to his theory and illustrating how it clarifies statutory interpretation, refers to Smith v. United States. Footnote 68 In his view, cases like Smith reveal that judges recognize that there are multiple ways of deriving legal content from a statute. Indeed, both the majority and the dissent in Smith appeal to multiple considerations, including ordinary meaning, dictionary definitions, context, legislative intention or purpose, reasonableness, case law, etc.Footnote 69 Yet neither opinion offers a compelling explanation of why those considerations are relevant or how they should be weighed.Footnote 70 Greenberg’s theory, he argues, “supplies what is missing” in such debates by explaining both why these considerations might matter and how conflicts among them should be resolved.Footnote 71 The theory coheres with the observation that, when faced with interpretive disagreements, it is natural to turn to moral considerations, such as democracy and fairness—precisely what we see in debates between textualists and their opponents.Footnote 72 Once we see that interpretive debates turn on moral considerations, “it is difficult to resist the conclusion” that one must ask what the statute’s moral implications are, in light of all the relevant moral facts.Footnote 73 Resolving the interpretive disagreements we observe in legal practice requires, thus, “developing an account” of the impact of moral considerations on legal norms, along the lines suggested by the moral impact theory.Footnote 74
Greenberg also claims that adjudication is a way in which legal officials can change the moral profile, which becomes clear—he argues—when we look at the practice of interpreting case law. Against the “standard picture,” he argues that interpreting a precedent is not about ascertaining its linguistic content. When deciding how to resolve a case by taking into account a past decision, it is common to distinguish past cases or to treat part of the precedent opinion as dicta. Footnote 75 This would show that something else (on his account, moral facts like considerations of fairness) must do the work to explain how judicial decisions rationally determine legal norms.Footnote 76
In Hershovitz’s case, when he discusses statutory interpretation, he argues—focusing on the case of King v. Burwell—that judicial disagreements are not about the fact that the relevant statute was passed or its words, but rather “about the significance of the fact that Congress had enacted a statute with the words that it did.”Footnote 77 This, he claims, is a moral disagreement about the moral rights and responsibilities generated by legislation. The judges disagreed about that issue “because they had competing visions of democracy and the proper role of judges within one,” which stand or fall “on their moral merit.”Footnote 78
Hershovitz argues more generally that we disagree about what the law is, and that such disagreement “is part of what we contest in court.”Footnote 79 Seeing that disagreement as a moral one, as his view suggests, allows us to understand why it is so deep.Footnote 80 On this view, when plaintiffs sue, they assert moral rights. Whether the plaintiff does have the right they assert is a moral question that depends on the complex factual background that lawyers are experts on. Lawyers know what the relevant cases, statutes, and other legal materials are, how the law has evolved, and “where one needs to look for the decisions that are relevant to determining just what people’s rights are.”Footnote 81
In both cases, the examples and the cultural and institutional background that make them intelligible are familiar to American lawyers—as well as, though perhaps to a lesser extent, to other common lawyers. But they are harder to square with the experience of many civil lawyers. Pervasive interpretive disputes that depend on competing conceptions of democracy and other values, the idea that adjudication resolves what people owe to each other and assertions of moral right, and legal practice requiring “deep dives” to find relevant lines of cases or some authority that might clarify what the legal rights of the parties are, are all familiar aspects of American legal practice. But they are far less familiar in other salient legal systems, and particularly some civil law jurisdictions—as I will argue in more detail below.
Of course, even if a theory relies on examples or observations from one particular legal system, it could uncover general features that apply to many legal systems.Footnote 82 It may be, for example, that the practices of American lawyers and judges serve functions or address problems that many other legal systems also confront, because those needs and problems arise across different institutional contexts.Footnote 83 The practice the theorist focuses on might thus highlight features that are central to many other practices too.Footnote 84
All of this is true as a matter of conceptual possibility. But whenever theories rely on a limited set of examples (or, worse, when the set is a set of one), this gives us a good reason to investigate whether the theory might have general explanatory power, and to think carefully about whether the features of the token the theory focuses on are generally true or significant.
Of course, theorists can offer accounts of a particular legal system rather than of law in general. But that is not how either Greenberg or Hershovitz frames their accounts. They attempt to make general claims about law, and those claims ought to be evaluated as such. Here, Dworkin’s theory in Law’s Empire is an interesting contrast. Like Greenberg and Hershovitz, Dworkin relied on some salient features of American apex adjudication. But he also talked about “what law is for us,”Footnote 85 clarified that interpretive theories like his own “are by their nature addressed to a particular legal culture,”Footnote 86 and expressly argued that he saw jurisprudential theories as “general interpretations of our own judicial practice.”Footnote 87 Dworkin might have been wrong, in substance, about all of this, as well as about his particular view of American legal practice. But there was, at least in Law’s Empire, a certain symmetry between the scope of his claims and the scope of his observations about legal argument that is not present in NLAP’s general claims.Footnote 88
Of course, counterexamples from other legal systems are unlikely to persuade those already committed to NLAP, and observations that appear troublesome for a theory can always be explained—or explained away—with some argumentative effort. Still, for readers without prior familiarity with other legal systems or a prior commitment to NLAP, it is important to highlight that many of the examples and observations that might make the theory plausible in the American context do not translate well to other legal practices. This is not, by itself, a decisive objection to NLAP. But it is a relevant consideration given the general scope of the claims advanced by Greenberg and Hershovitz.
Indeed, a very limited set of observations and examples might generate theories with limited explanatory power. I say might because there’s no necessity here. Whether we can draw a valid inference from limited data depends both on how representative the data is for the general explanandum and the nature of the inferences one draws. Thus, a theory that relies on a very limited set of observations and examples and that offers general propositions about law as such might not be a good theory. This fact should lead us to critically assess whether theories with these features have the resources to make up for their deficit in terms of the observed data and its potential unrepresentativeness, and to capture variation in the relevant general phenomenon to be explained. From this perspective, NLAP has a serious drawback: its set of observations is quite limited, and the theories seem at odds with the discursive and argumentative practices of other salient legal systems. In the next two sections, I address (i) how NLAP reflects distinctive aspects of American legal culture and (ii) how NLAP fares when we broaden our perspective to include civil law systems.
IV. American Legal Culture
In this part, I discuss some key features of American legal culture. These background traits make NLAP’s examples intelligible and might render it initially plausible when we focus narrowly on American law. My claim is not that these traits determine NLAP or that American legal culture uniquely gives rise to it; they are equally compatible with other jurisprudential traditions, including legal realism, pragmatism, and instrumentalism. Rather, the point is that these features of American practice generate a set of intuitions about legal reasoning that make the kinds of examples invoked by Greenberg and Hershovitz illustrative and seemingly supportive of their general claims.
A. A Common Law Tradition
American law is part of the common law tradition, which distinctively relies on the judicial creation or declaration of legal standards through the decision of particular disputes.Footnote 89 These standards are defeasible—every legal rule in a common law regime is, at least in principle, subject to marginal change, adjustment, and reformulation.Footnote 90 In the early development of the common law, courts relied for this purpose on the “good judgment of peers,” “local norms,” and “common sense.”Footnote 91
Of course, there are many specific legal systems, with their own idiosyncrasies, within the common law tradition. Here, I am concerned with general theoretical ideas in the common law (and particularly English common law) that American law inherited and were significant in its formative period. There are many features of other common law jurisdictions that might be more or less consistent with NLAP. My aim here is simply to note a certain connection between common law theory as inherited by American law and some of the claims of NLAP.
The classical theory of the common law emphasized both custom and reason.Footnote 92 Under this classical theory, the judge in a common law system does not make law but declares it by finding it in already existing custom.Footnote 93 But custom, on this view, is not a mere fact. That a custom has been long-standing is evidence of its consistency with reason, or at least of its viability as a standard of conduct. Within this classical theory, then, common law is “taken up” rather than deliberately made.Footnote 94 The judge is a lawfinder rather than a lawmaker.Footnote 95 What they find is a set of standards that should be consistent both with critical and positive morality (i.e., with reason and custom).Footnote 96
The declaratory theory of the common law has been mostly (though not fully) abandoned. Today, most theorists and lawyers acknowledge that the common law is made.Footnote 97 Nevertheless, common lawyers have not abandoned the view that the common law should be responsive to morality.Footnote 98 As Benjamin Cardozo—the paradigm of a common law judge in American law—puts it:
[T]he judge is under a duty, within the limits of his power of innovation, to maintain a relation between law and morals, between the precepts of jurisprudence and those of reason.Footnote 99
Versions of this idea show up in theories about specific areas of common law too. In tort law, for example, the thought is that judges are—through the exercise of their craft—working out and elaborating a set of moral ideas (about blameworthy conduct, compensation, and so on).Footnote 100
The notion that common law standards are grounded in reason, and found rather than made, was influential in the early days of the United States as an independent nation.Footnote 101 Again, the contemporary understanding in American legal culture is that—contrary to the classical theory—the common law is made rather than found.Footnote 102 Nevertheless, the notion that there is a continuity between common law and (critical or positive) morality is still part of American legal culture. This is not just the case for nonpositivist theories like Dworkin’s and Hershovitz’s. We can see this, for example, in Melvin Eisenberg’s argument that common law reasoning should incorporate “social propositions,” including norms of positive morality.Footnote 103 We see it, too, in Richard Posner’s view of common law adjudication as a “pragmatic” endeavor aimed at coming up with the best decision, all things considered.Footnote 104 Although neither Eisenberg’s nor Posner’s are theories about the nature of law, and although they (and particularly Posner’s) might be idiosyncratic in all sorts of ways, they reflect a larger set of views about the continuity between law and morality that are central to the American common law tradition.
Of course, many American theorists, lawyers, and judges would object to such views—not to mention theorists in other common law jurisdictions. No legal culture is monolithic and univocal. But part of what it means to be a common law tradition is to have inherited notions about there being a close connection between the legal resolution of disputes and (critical or positive) morality.
Moreover, views about law (and its relationship to morality) are closely connected to views about judging. In this respect, the common law tradition places significant emphasis on the role of judges.Footnote 105 In the particularly American instantiation of the common law tradition, judges are expected to respond to evolving social norms.Footnote 106 This is reflected in the preservation of the jury, the judicial appointment process, and multiple other institutional features.Footnote 107
This does not mean that common law theory in the United States is uniquely compatible with NLAP or that there is some causal connection between the two. My aim is simply to show that many of the features of legal discourse and judicial practice that might seem particularly consistent with a view like NLAP are intimately connected to common law theory and its American reception.
B. Courts, Constitutional Law, and Judicial Review
The institutional separation between law and politics is weaker in the American legal system than in other Western legal systems.Footnote 108 It is not uncommon for American judges to decide on the basis of policy considerations,Footnote 109 and for litigation to play an important role in politics.Footnote 110 American judges are politically significant figures.Footnote 111 They decide about abortion, same-sex marriage, affirmative action, and even the winners and losers of presidential elections. Even in legal systems that are also part of the common law tradition, such as English law, institutional norms and mechanisms seem to generate an ostensibly stronger separation between politics and judicial decision-making.Footnote 112
There are, undoubtedly, many reasons why the United States is different in this respect from otherwise similar Western legal systems. But one part of the explanation is provided by three features of constitutional law in the United States: its centrality, its judicialization, and its indeterminacy.
The centrality of constitutional law in the United States is a widely recognized phenomenon. This phenomenon starts with the place of the constitutional text in political culture: as Max Lerner put it, “[e]very tribe needs its totem and its fetish, and the Constitution is ours.”Footnote 113 It is also reflected in more mundane features of legal culture, education, and argument. The constitution is typically conceived of as a single, fundamental, and hierarchically superior law that reigns supreme over the entirety of the legal system.Footnote 114 Moreover, this supreme law simultaneously operates as a source of political values and ideals and as a marker of “we the people” as a unit.
Take, as an illustration, Balkin’s account of the functions of the American constitution. He argues that the constitution must work simultaneously as basic law, higher law, and our law. By acting as basic law, the constitution “sets up a basic framework of government that promotes political stability and allocates rights, duties, powers, and responsibilities” and “trumps other law to the contrary.”Footnote 115 The constitution being higher law means that “Americans also view their Constitution as a source of important values, including justice, equality, democracy, and human rights,” its guarantees “as objects of aspiration,” and its text as “a repository of values and principles.”Footnote 116 Finally, the constitution is our law to the extent that the American people see it as their own achievement as a collective subject (“we the people”).Footnote 117
Balkin’s account is by no means idiosyncratic in the American context. But this view would be significantly less plausible in other legal systems, including other common law systems.Footnote 118 Kim Lane Scheppele, perhaps with some hyperbole, argues that Balkin’s view is “distinctively American.”Footnote 119 It captures, in other words, the centrality of the constitution in the American legal system. Of course, American constitutionalism has influenced many other legal systems, and constitutionalism as a general political and institutional tradition is not exclusively American. But the centrality of the constitutional text in political and legal discourse is a salient fact of American legal culture.
This centrality of the constitution is combined with a system of judicial review that gives significant power to courts, and particularly the Supreme Court, to determine its meaning.Footnote 120 This version of judicial review is, comparatively speaking, an outlier.Footnote 121 Most systems of judicial review in Europe rely on specialized constitutional courtsFootnote 122; concentrate constitutional review in those courtsFootnote 123; and typically do not evaluate questions of constitutionality in the context of existing controversies.Footnote 124 In modern Europe, the American model of judicial review has generally been rejected, and models that give less power to generalist judges have been adopted.Footnote 125
Despite its centrality and courts’ extensive powers to apply it, the text of the constitution is quite limited, and there is significant disagreement about its interpretation.Footnote 126 Constitutional law is thus less determinate than other areas of law, and the Supreme Court has discretion and space for political judgment about the decision of at least a subset of relevant cases.Footnote 127 This generates a substantial degree of uncertainty within an extraordinarily important (and highly visible) domain of judicial decision-making.Footnote 128
Thus, the constitution has an outsized significance; courts (and particularly the Supreme Court) have significant power in determining what it requires; and the constitutional text is quite limited. Given this combination of factors, American apex adjudication is characterized by the prominence of moral and political considerations, and a porous boundary between them and legal reasons.Footnote 129
C. Indeterminacy
The fact that a relatively indeterminate area of law is also exceptionally important is an indication of a comfort (or, at least, a familiarity) with legal indeterminacy that is characteristic of American legal culture.
The American legal system is highly complex.Footnote 130 It has fifty state legal systems, with their own administrative bureaucracies and courts. It also has a federal system with its own institutional apparatus.Footnote 131 Figuring out the legal solution for a practical problem is not always easy, and sometimes requires significant amounts of research—the complex research that Hershovitz argues lawyers are expert at.Footnote 132 Because of this, American lawyers expect the legal system to be somewhat indeterminate—for the law not to always determine the answer to legal questions.Footnote 133 This, as Maxeiner argues, is in clear contrast with the salient role of legal certainty in European legal culture.Footnote 134
According to Maxeiner, this is partly explained by the methods of American legal culture.Footnote 135 As Damaska puts it, even those European scholars who tend to be skeptical of conceptualism and doctrinal categories “would be taken aback at the paucity of conceptual digestion in most areas of American law.”Footnote 136 This aspect of legal culture is reflected in how American legal education works: by emphasizing indeterminacy and hard cases.Footnote 137 Familiarity with legal indeterminacy is an important aspect of American legal culture, even if—as many scholars argue—the diagnosis of American law as pervasively indeterminate is an exaggeration.Footnote 138
D. Adversarial Legalism
Adversarial legalism is Robert Kagan’s label for the making and implementation of public policy through adversarial litigation and adjudication.Footnote 139 As Kagan puts it, the American judiciary is exceptionally “flexible and creative,”Footnote 140 and operates as an institutional venue for the resolution of widespread social and political disagreements, the frequent review of administrative action, the resolution of political controversies about existing legal regimes, etc.Footnote 141 Consistently with this, the judicial selection process is highly politicized; parties are expected to act as private attorney generals; activists turn to courts to achieve their political goals; and judges make crucial decisions about policy. In all these respects, Kagan argues, the United States is a comparative exception.Footnote 142
Adversarial legalism is not just a feature of institutional design. It is also a feature of legal culture. As Kagan notes, adversarial legalism reflects deeply held views of law as a “pragmatic instrument” that should be used to advance politically valuable goals.Footnote 143 From a comparative perspective, as Kagan argues, American courts have tended to be less formalistic, more policy oriented, more attentive to the equities of the particular case, and more central to governance.Footnote 144 Even when courts disavow political aims, they are central to the operation of the political system, and act as a mechanism for political reform that allows social groups to achieve what they wouldn’t be able to achieve in the ordinary political process.Footnote 145 In the United States, as a consequence, lawyers and judges decide what is elsewhere decided by politicians and bureaucrats.Footnote 146
E. The Contrast with Civil Law Systems
In all the respects I have mentioned, civil law systems are quite different from American law.
First, it is common to contrast American and civil law judges’ willingness to develop the law and their comfort with judicial creativity.Footnote 147 These differences have deep roots in the different political and cultural trajectories of these legal traditions.Footnote 148 Because of these differences, American law has been more fertile ground for certain ideas about judicial decision-making than European civil law, and vice versa.Footnote 149 This does not mean, of course, that civil law judges do not develop the law, that they do not think about the equity of particular outcomes, or that legislation, once enacted, has legal implications that never change over time. The point, rather, is that these phenomena are cabined within a legal culture that is very concerned with disciplining them, subjecting them to legal control, and even to make them less salient or transparent—all of which is grounded in a very different view of the judicial role and of the nature of law.
Contrasting views about the judicial role are partly explained by the impact of codification. The codification project embodied a conception of law as a set of authoritative texts, validated in virtue of their (legislative) source.Footnote 150 It also embodied a central concern with legal certainty,Footnote 151 as well as with the limitation on judicial power.Footnote 152 More importantly, codification generated an important intellectual shift that Bulygin calls the positivization of law. Footnote 153 Codification allows for a clear distinction between the authoritative legal text—the Code—and judges’ and lawyers’ moral views.Footnote 154
In the case of French codification, one of its main aims was to clearly distinguish the creation and application of law, and to limit the judiciary’s role to the second activity.Footnote 155 Equitable judicial power was, on this view (which has been prevalent in many jurisdictions in the civil law tradition), a threat to the rule of law.Footnote 156 In fact, in the period right after the enactment of the Code, legal scholars and lawyers adopted an “exegetical” approach to the Code that directly rejected anything beyond literalistic application.Footnote 157 Although the idea of exegesis has been overcome, French legal culture is still marked by adherence to the thought that the judiciary is subordinate and ought to lack discretion, as much as possible.Footnote 158
In most civil law systems, judges are typically thought of as public servants or bureaucrats. Judicial careers are highly regulated, bureaucratized, and have a pre-established hierarchical structure that starts with specialized judicial education.Footnote 159 Civil law judges are career judges,Footnote 160 in contrast to their American counterparts.Footnote 161
NLAP is not a theory of adjudication but a theory of law. But in this latter aspect, the broader legal culture in many civil law countries tends to be positivistic. Although there’s a tradition of disagreements between positivist and antipositivist views, there is an important sense in which the dominant intellectual paradigm of legal scholars working in doctrinal areas is broadly positivist.Footnote 162 Because of this, comparative lawyers writing about the civil law tradition argue that, in that context, the debate between legal positivism and natural law was “decisively resolved” in favor of the former.Footnote 163 Thus, lawyers in civil law systems tend to adopt a (typically implicit, sometimes explicit) more positivistic conception of law than lawyers in common law systems.Footnote 164
Most traditional legal scholarship in civil law has typically seen itself as neutral legal science. Footnote 165 The notion of legal science was central to the development of German legal culture and the German Civil Code (BGB). Within this tradition, jurists aimed to produce a “formal conceptual jurisprudence” built in the image of the natural sciences, grounded in logic, and aimed at objective legal truths (independent from morality).Footnote 166 Legal scholars and judges were supposed to be impartial, and this was to be achieved through a purely formal and conceptual style of legal argument that excluded moral judgment.Footnote 167 Consistently with this, traditionally, German Federal Supreme Court opinions do not contain dissents and avoid the consideration of arguments and counterarguments.Footnote 168
V. American Nonpositivism
Considering the cultural and institutional specificities of American law, it is unsurprising that NLAP has been developed by American theorists, and that most of the theorists who endorse similar views about law to NLAP work in common law jurisdictions.Footnote 169 This makes sense because NLAP—with its emphasis on the moral aims of adjudication, the centrality of judicial decision-making, and its skepticism about distinctively legal norms based on social fact alone—is a better fit with American law than with civil law systems.
Hart once emphasized the central place that adjudication occupies in the tradition of American jurisprudential thought.Footnote 170 As he explained, this central place was understandable given the significant role that courts play in American politics.Footnote 171 This role generates a pressure for jurisprudential theorists to answer theoretical questions about judicial decision-making and its relationship to legal and moral norms that are less salient in other contexts.Footnote 172 As a consequence of this, Hart argued, American jurisprudential thought oscillated between a nightmare and a noble dream—i.e., between radically skeptical and optimistic views of legal reasoning.Footnote 173 The latter type of view, Hart argued, was exemplified by Dworkin’s account of hard cases and his thesis that all legal problems had a right answer.Footnote 174
The aspects of American legal culture I briefly explored in the previous section are connected to the recent turn toward NLAP—just like similar traits were connected, according to Hart, to the nightmare and the noble dream. Footnote 175 NLAP’s examples and observations draw heavily from American law but are not representative of legal practices elsewhere. I further substantiate this claim in the next sub-sections.
A. General Claims, Limited Data
1. The Moral Impact Theory
Greenberg argues that his theory captures the “many factors to which judges appeal in legal interpretation.”Footnote 176 As I already mentioned, Greenberg illustrates this by reference to Smith v. United States. Footnote 177 In Smith, judges appealed to ordinary meaning, dictionary definitions, context, legislative intent, reasonableness, legal usage, precedent, legislative history, and substantive canons like the rule of lenity.Footnote 178 On Greenberg’s view, the resolution of these interpretive disagreements “depends on what the relevant moral values, on balance, support.”Footnote 179 Such values settle which facts are relevant, and how.Footnote 180 In Smith, in particular, we would need to articulate an account of democracy or of whatever moral considerations would be relevant to figure out which position is supported by the balance of such considerations.Footnote 181
Greenberg’s example is far from representative. The idea that judges should consider multiple objects, facts, and reasons and articulate them when interpreting statutes, openly expressing their disagreements about these issues, is central to American legal practice. But it is not central to the practice of other countries—consider, for example, the French Cour de Cassation. Footnote 182
This would not be a problem if Greenberg’s aims were to offer a theory of American law. But that is not Greenberg’s aim: his aim is to offer a universal account of the rational determinants of legal content in any legal system. Given such general aims, one would expect Greenberg’s account to rely on a wide set of observations from different legal practices. Instead, Greenberg’s engagement with examples beyond the Anglo-American tradition is very limited, while his claims are quite general.Footnote 183 If one looks beyond American and common law, it is clear that not all legal systems would generate examples of courts articulating multiple alternatives when ascertaining what the law requires. The problem is not appealing to US Supreme Court cases like Smith. The problem is assuming that such a case is a representative sample that can bolster a general theory about the determinants of legal content.
It is plausible to think that, in the context of contemporary statutory interpretation in the Supreme Court, the resolution of interpretive disagreements might require normative judgment.Footnote 184 In this regard, Greenberg’s theory might fit some aspects of contemporary American legal practice. Again, this is a highly complex legal system, with important pockets of indeterminacy, within a common law tradition that emphasizes the centrality of judges and the pursuit of social change through litigation. In this system, one would expect judges to disagree vehemently about issues of legal interpretation and for those disagreements to track—explicitly or implicitly—moral disagreements.
But these observations do not suggest that moral considerations are, in general, amongst the determinants of legal content. Generalist courts in other legal systems do not refer to any moral considerations in applying the law (or might do so only when legal sources grant them discretion), do not articulate alternative interpretations, do not offer extensive arguments in favor or against such interpretations, and avoid offering detailed arguments.Footnote 185 In many jurisdictions, judicial debates about interpretive methodology tend to be significantly less salient.Footnote 186 A general theory should be able to make space for this heterogeneity. It should avoid transforming specific features of judicial interpretation at the apex level of the contemporary American legal system into general features of law.
One obvious potential objection here is the following. Perhaps, French Cour de Cassation judges are not aware of the fact that moral facts ground French legal norms too, but this is not dispositive. For starters, many French scholarly commentators analyze and criticize those decisions on the basis of moral considerations (although, typically, they carefully distinguish such criticisms, which are de lege ferenda, and strictly legal criticisms, which are de lege lata).Footnote 187 Whether or not the truth about the determinants of law is reflected in written rulings is just a contingent matter best explained by social norms and cultural practices.Footnote 188 So, the fact that the text of the ruling itself usually remains very short, syllogistic, and legalistic is by no means dispositive. What matters philosophically is not judicial style or even the psychology of judging, but the metaphysics of law. Everything that seems peculiar about French legal reasoning is at best a matter of epistemological practice, not metaphysics.
This is a perfectly valid rejoinder, as far as it goes. Again, my aim here is not to conclusively show that Greenberg’s moral impact theory is false. The point is that parochial examples from judicial practice in one legal system at one point in time have very little weight to vindicate or render a general theory about the nature of law plausible, unless those examples are shown to be representative. Moreover, other practices that are also part of the explanandum cannot simply be ignored. Greenberg’s theory responds to very specific features of American law—which makes its claim to offer a general account of the metaphysics of law at least dubious.
Certainly, Greenberg could argue that, according to his theory, the moral impact of the actions of legal institutions is sensitive to the relevant history and past practices of the legal community. That history might be such that historical facts about the codification process or an institutional commitment to limiting the exercise of judicial power make it the case that it is, in that jurisdiction, morally inappropriate for judges to engage in moral reasoning or to give deep, transparent, and extensive justifications for their legal decisions. After all, his view is compatible with judges’ interpretive approaches not involving moral reasoning.Footnote 189 The best way of ascertaining what the law requires might be different from how legal content is metaphysically determined.Footnote 190 There are familiar reasons—about human fallibility and efficient decision-making—why that might be the case.Footnote 191
The problem with this strategy is that it requires, to accommodate legal practices like those I have described, a significant degree of opacity. To put it in Greenberg’s terms, in some legal systems, the epistemology of law does not seem to track its metaphysics at all. In Greenberg’s own articulation of his view, although there might be a divergence between methods of interpretation in legal reasoning and the metaphysics of law, there still needs to be a connection: the determinants of law, after all, make it the case that legal content is what it is.Footnote 192 This is why, he argues, lawyers (although they would not use this language) “take for granted that the epistemology of law tracks its metaphysics.”Footnote 193 If it is the case that value facts are amongst the determinants of legal content, he says, then “[t]he epistemic corollary is that working out what the law is will require reasoning about value.”Footnote 194 As he writes:
To put it schematically, if the content of the law is determined by a certain function f of the x, y, and z facts, then ascertaining the content of the law will require ascertaining the x, y, and z facts and working out f (x, y, z).Footnote 195
From this, it follows that methods of legal interpretation seek to reliably ascertain the content of the law on the basis of the relevant determinants of the latter.Footnote 196 This entails that, if the moral impact theory is correct, then a method of interpretation will be good if it is a reliable method for working out the impact of legal practices on our moral obligations.Footnote 197 This might be a plausible argument to make in the context of judicial debates about interpretation in American law. But in the case of French judicial practice, for example, it seems that the latter explicitly and directly denies what the moral impact theory suggests. This is much more radical than a mere divergence between judicial epistemology and the alleged metaphysics of law.
2. Law as a Moral Practice
Hershovitz argues that moral practices—like promising—are mechanisms for adjusting moral relationships, and that law is just one more of those practices. There isn’t a metaphysical distinction between legal and other moral practices, and there are many ways of labeling practices as legal, depending on what we aim to emphasize.Footnote 198
Many American lawyers would be sympathetic to the idea that there isn’t much value in asking what makes something legal. What matters, on this view, is what courts should and will do, and how agents will behave in response to legal change. That is because a central trait of American legal culture is its conception of law as a set of practical tools for achieving substantive goals.Footnote 199 What matters, from this perspective, is what we achieve through law. American legal theory is—from Holmes, Felix Cohen, and Jerome Frank to Fuller, Dworkin, and Posner—fundamentally pragmatist.Footnote 200 Hershovitz’s theory is part of this tradition.
But not all legal cultures are like American legal culture in this respect. For many theorists outside of the Anglo-American tradition, the crucial questions are what makes something a valid source of law, how objective and neutral legal knowledge is possible, what makes a norm legal rather than a norm of social morality, etc.Footnote 201 In many civil law systems, the question of what is legal is centrally important—so important that general jurisprudence is not thought of as a purely philosophical project, but is instead the general framework for legal science, scholarship, and education.Footnote 202 In fact, there is a long tradition of thought in the civil law tradition that attempts to build an objective, morally neutral legal science—the purpose of which is precisely to produce scientific knowledge about legal content—and of critique of that project.Footnote 203 Of course, the aspiration to reach a purely neutral, scientific form of legal knowledge might be mistaken. But my point here is that general propositions about law should, given their generality, also apply to practices where the concerns with what is legal (as opposed to what is moral) seem central.Footnote 204
A potential objection here—similar in spirit to one we already considered regarding Greenberg—would be that the truth of Hershovitz’s claim is independent from the fact that particular legal cultures might mistakenly deny it. Note, though, that it is perfectly possible for some legal practices to deny, as a matter of their underlying commitments and conceptions, that what’s going on in adjudication is the enforcement of moral rights and obligations. Some cultures might be committed, in fact, to the view that the only purpose of adjudication is to resolve a case by reference to law, independently of morality. That seems like a relevant part of some of the token practices of the general type that Hershovitz is interested in.
In the United States, the late Justice Scalia is a figure who sometimes comes close to suggesting something like the idea that the law can be identified impartially and objectively, and the task of the judge is simply to apply it.Footnote 205 As Hershovitz correctly notes, though, Scalia’s arguments and interpretive disagreements with his colleagues were moral arguments and disagreements about democracy and judicial ethics.Footnote 206 But, again, I must note that not all judges everywhere talk about interpretation in this way. It is true that even textualist US Supreme Court justices can’t entirely avoid making moral arguments. But this proves as much about law in general as the fact that judges in the Cour de Cassation rarely, if at all, make moral arguments in their written opinions,Footnote 207 or the fact that German legal culture has been committed during long periods of time to the idea of morally neutral legal science. Again, one can’t ground general claims about legal practices as such in a limited, unrepresentative sample.
B. Not Truly General Jurisprudence
What I have said so far does not prove that NLAP is false. But it does suggest that much of the evidence presented by Greenberg and Hershovitz is not representative and does not support or illustrate general claims about law. For example, the fact that Supreme Court justices in the United States make moral arguments or openly discuss interpretive disagreements shows as much about law as the fact that the exegetical school denied any space for judicial interpretation.
Take Hershovitz’s arguments about statutory interpretation. Interpretive disagreements, according to Hershovitz, are moral disagreements about the moral rights and responsibilities generated by legislation. The best evidence for this, he suggests, is how interpretive disagreements play out in court.Footnote 208
Hershovitz might be right that some disagreements about legal interpretation in American apex litigation turn on moral considerations. One could think that this is simply an upshot of the fact that sometimes (and particularly in cases that are litigated at this level) the law is indeterminate, which leads to the existence of hard cases.Footnote 209 For Hershovitz, though, hard cases merely lay bare the moral issues underlying legal disputes.Footnote 210
But why would courts make moral arguments in hard cases? The answer to this question turns on the fact that American legal culture expects judges to offer and articulate real, substantive reasons in favor of their decisions. John Rawls thought of the Supreme Court as “the exemplar of public reason”Footnote 211 and Ronald Dworkin characterized it as a “forum of principle.”Footnote 212 Both of these characterizations are plausible given the practice of judicial justification. That practice leads judges to articulate detailed reasons in favor of their views, including (in cases of indeterminacy) moral reasons.
Nevertheless, that practice is not universal. It was certainly uncommon before modernity, at least in the Western legal tradition.Footnote 213 In civil law systems, courts tend to have legal obligations to provide written opinions, but those opinions also tend to be precise, short, and formalistic.Footnote 214 The typical French judicial opinion is short and impersonal and is commonly derided as uninformative and opaque.Footnote 215 Not so in the United States. Judges play a prominent role in our official story, and hence it is natural and perhaps valuable that they offer reasons.Footnote 216 For American lawyers and judges, opinions articulate judges’ reasoning and the considerations they believe justify the outcome of the case. In fact, opinions are sometimes thought to be vehicles for self-expression and personal judicial style.Footnote 217 For the French, at least traditionally, the role of opinions is to show that the outcome derives directly, and without the mediation of any personal substantive reasoning, from legal provisions.Footnote 218
This, once again, does not show that NLAP is false. But it does show that the evidentiary weight of what American judges do here and now is quite limited, and that one can’t infer from observations about American legal practice general observations about legal practice as such.
C. More Than Meets the Eye?
Now a possible objection here might be that there’s more than meets the eye when it comes to civil law culture. Take, for instance, French legal culture. Perhaps the style of the Cour de Cassation hides more than it illuminates—aspects of French legal culture that are much more consistent with NLAP might not be evident in judicial opinions. For instance, while the discourse of judicial opinions seems to avoid any discussion of moral or normative considerations, other documents and speech acts—like the conclusions of the Advocate General or the rapports issued by reporting judges—seem to reflect “the discourse of policy logic and socially meaningful judicial solutions.”Footnote 219 Perhaps I am focusing too much on the surface appearance of judicial opinions while neglecting a more complex reality. Perhaps, in other words, the French legal system and its culture—as well as other civil law systems and cultures I have discussed—are much less troublesome for NLAP than I have assumed.
The problem with this objection is that the specificities of French legal culture—and civil law culture more broadly—that I have discussed so far also show up in how these legal systems handle the judicial development of law and the tensions between formal and substantive reasoning that might seem to give NLAP more general plausibility. As Lasser notes, while American judicial discourse combines these two forms of reasoning in judicial opinions, the French system bifurcates them “into two distinct discursive spheres: an official, formalist, and magisterial judicial discourse, and a hidden, internal, only-for-insiders-in-the-know discourse of equity, legal adaptation, social/economic/institutional policy, and the like.”Footnote 220 This bifurcation between the official discourse of formal judicial opinions and “behind the scenes” conclusions and rapports preserves both the official discourse (of syllogistic adjudication, legislative supremacy, and irrelevance of moral considerations) and the unofficial discourse (which takes into account fairness, justice, and other normative considerations).Footnote 221 This bifurcation is not insincere, according to Lasser. Instead, it reflects a specifically French understanding of what law is, which is different from the American conception.Footnote 222 That understanding is in fact committed to the idea that only the legislature makes law.Footnote 223 Judges cannot usurp this function—“law” is not just any normative standard but a set of rules formally enacted by the legislature.Footnote 224 While there is a recognition that judges exercise discretion—as reflected in the “unofficial” side of French legal discourse—there is also a deep belief in the idea that judges do not make law, and that their decisions are not a “source of law.”Footnote 225
Thus, there is indeed more than meets the eye. French legal culture is not as simple as what one can surmise from observing judicial decisions. But the complexity in fact vindicates how at odds with NLAP French legal culture is. Under that culture, even the recognition of judicial creativity and of the relevance of moral considerations is expressed in a way that reaffirms a commitment to the view that law is just a matter of social fact—more specifically, that all law derives from legislation.Footnote 226 Even though French legal scholars recognize that judges innovate and create norms, they also deny these norms the status of law, because—on the French view—all law is necessarily produced by the legislature.Footnote 227
VI. Toward General Jurisprudence
A. Concepts of Law
French legal culture, thus, appears to adopt a specific conception of law that, while more complex than what appears at first blush, seems at odds with NLAP. One of the key insights of comparative jurisprudence is, precisely, that the practice of legal reasoning depends on reasoners’ commitments, shared views, and understandings. Atria helpfully synthesizes these commitments in the idea of an image of law—a set of beliefs about legal discourse that determine how legal texts are understood and applied in any legal system.Footnote 228 Because of the important role these beliefs play in the practice of legal reasoning and interpretation, they are directly relevant as determinants of the content of the law in each specific jurisdiction.Footnote 229
The image of law can—and typically does—include a concept of law that plays an inferential role in legal argument. This means that, although there is a question about the nature of law in general, there is also a question about the concept of law that legal reasoners might adopt in any legal system at any given point in time. One key feature of the concepts that lawyers use is that, while somewhat stable, their content changes over time, as their applications—and the webs of argument in which they figure—evolve.Footnote 230 Another key feature of these concepts is that their content is, at least partially, jurisdiction-specific (consider, for example, jurisdictional variation about the concept contract). There is at least a plausible argument that, just like specific legal concepts, the concepts of law adopted by legal participants in classical Roman law, medieval civil and common law, and contemporary Western legal systems might diverge.Footnote 231 In other words, the concept law that legal participants adopt might be different across different legal systems.Footnote 232
For instance, Stuart Banner has traced the rise and decline of appeals to “natural law” in American judicial reasoning,Footnote 233 and his historical argument offers a clear illustration of change regarding the concept law in American legal culture.Footnote 234 Unlike what seems to be the case today, for long periods of time, judges and lawyers have been comfortable appealing to natural law and treating natural justice as a source of legal norms.Footnote 235 As we have seen, there also seems to be jurisdictional variation about this local concept of law across different jurisdictions.Footnote 236
What this suggests is that, although there might be general features of law as such (or of law across multiple legal systems), these general features lend themselves to further specifications that will vary across American, English, French, and Roman law.Footnote 237 Law is, in this way, like pizza or knives. There is pizza in general, but also Neapolitan, Roman, Argentinean, New York, and (arguably) Chicago pizza. And there are knives in general, but also carving knives, army knives, butter knives, etc.Footnote 238
Because of this, we should avoid making general or universal claims about the nature of law on the basis of peculiarities of particular legal systems, grounded in the specific legal or internal conception of law adopted by participants in those particular legal systems or implicit in their practices. We cannot derive general traits of a type of practice from nonrepresentative traits of a specific token—as an analogy, one cannot infer from the fact that Chicago pizza is a deep-dish, stuffed pie, that pizza in general is a deep-dish, stuffed pie. And my worry is, precisely, that this is what NLAP has done with features of contemporary American law.
The obvious objection here is that it seems perfectly possible for NLAP and other nonpositivist theorists to talk with their civil law counterparts and to do so without talking past each other, which seems to suggest they all have the same concept in mind. Nevertheless, while it is true that legal theorists can fruitfully talk with each other even when they have different concepts in mind, the explanation for this is that there is a lot of overlap in the extension of different concepts of law.Footnote 239 This is particularly true within the modern Western legal tradition.Footnote 240 In many cases, American nonpositivists and civil law positivists can talk to each other fruitfully even though they might not share the same basic concept.Footnote 241 Moreover, in many cases these legal theorists do talk past each other. They seem to have different conceptions of the relevant explanandum and of the features of the explanandum that demand an explanation (coercion, normativity, guidance, or what have you)—which might help explain the different success of different ostensibly general theories in different legal cultures.Footnote 242
B. Accommodating Variation
The fact that lawyers and judges have adopted different concepts of law over time and in different legal systems is important and worth emphasizing. It also raises important questions about the extent to which different jurisprudential theories can offer general, rather than parochial, accounts.
Emad Atiq has put pressure on legal positivism for precisely this reason. As he argues, the treatment of moral norms as directly relevant legal norms in some historical practices seems to go against the claim that law is just a matter of social fact.Footnote 243 I tend to think that some versions of legal positivism could survive this challenge. Which concept law is in use in any jurisdiction at any given point in time depends on the practices of legal officials and other participants in legal discourse. There is no reason why we can’t say, in positivist fashion, that the concept law that is adopted or employed by legal officials is just one more aspect of legal practice explainable by reference to social facts. It could also be the case that the concept adopted in any particular jurisdiction might be such, as a matter of social fact, that it makes legal interpreters’ beliefs about morality legally relevant.
This version of positivism would remain agnostic about the concept of law adopted by specific legal cultures. It would only be a claim about law in general.Footnote 244 This is not to say that this is the only relevant or theoretically legitimate version of positivism, or that it is true. But it is a view that makes space for the conceptual variation that Atiq identifies. On this view, the social facts might be such that, in virtue of the internal conceptual structure of a particular legal system, certain moral norms, judgments, or beliefs are recognized as legal. Footnote 245
This kind of positivist strategy is compatible with some aspects of Hartian positivism, and particularly its emphasis on the theoretical significance of the reflective attitudes of participants in legal practice.Footnote 246 As Patterson puts it, Hart’s is an account that makes the law in any jurisdiction dependent on how participants in the practice act, talk, and think.Footnote 247 In Hart’s view, legal validity depends on the existence of a rule of recognition.Footnote 248 Once there is a rule of recognition, the claim that a rule is legally valid is equivalent to the claim that it satisfies the criteria of validity provided by the former.Footnote 249 This is because the rule of recognition is the ultimate rule of the legal system: while arguments of legal validity might start with familiar observations about enactments according to legal and constitutional rules, the chains of validation of legal rules ultimately end up in criteria that participants in legal systems, as a matter of fact, employ to assess legal validity.Footnote 250 For a legal system to exist, it is necessary for these criteria to be accepted as binding standards by the relevant legal officials.Footnote 251 Whatever officials collectively treat as binding criteria of validity are, because of that fact, binding criteria of validity.Footnote 252
There are reasons to think that the rule of recognition is not a rule but rather several rules.Footnote 253 There are also open and important questions about whether rules of recognition are to be understood as conventions,Footnote 254 as well as about whether they are duty-imposing, power-conferring, or both, or whether they are simply conceptual criteria.Footnote 255 Some of these difficulties stem from the obscurities in Hart’s own explanation of the idea.Footnote 256
There are also many complexities inherent to the idea of legal validity. Validity is an ambiguous concept.Footnote 257 It can mean the mere fact that a legal norm is a member of a specific legal system.Footnote 258 But it could also mean that a legal rule conforms to higher-ranking norms of the legal system.Footnote 259 There is, parallel to these, a related distinction between formal and material validity.Footnote 260
But what I’m interested in here are not these technical disputes: which account of legal validity and the rule of recognition is right depends, in my view, on the theoretical role that those notions play within a larger theory. What I am interested here, instead, is the broader intuition that the rule of recognition and its connection to (at least some versions of) validity gets at: the idea that what’s legally appropriate depends on the convergent attitudes and beliefs of the agents in charge of applying and enforcing legal norms.Footnote 261 Taking that idea seriously can generate a positivist theory that is nonparochial at least in one important sense that might respond, in part, to Atiq’s worry: it makes its identification of the law in any legal system responsive to the specific practices and commitments of the relevant legal officials, including their practices and commitments regarding the concept of law.Footnote 262 By claiming that the existence and content of law depend on the practices of legal officials, this version of positivism can incorporate the significant differences between the commitments and shared views of British, American, German, and French lawyers—and also explain why, in general, those commitments are significant—to a better extent than NLAP.
This ability to accommodate variation is not exclusive to positivist views. I have just developed one such view to show the type of strategy that can respond to Atiq’s concerns about positivism and the analogous concerns I have raised about NLAP. For instance, it seems to me that some versions of contemporary nonpositivism—like Crowe’s contemporary natural law theory or Atiq’s own functionalist and sparse nonpositivism—might also be able to accommodate cultural and conceptual variation quite well.Footnote 263 Similarly, consider John Finnis’s argument suggesting that one of Aquinas’s key jurisprudential insights was to emphasize “positive law’s variability and relativity to time, place, and polity…. [and] its radical dependence on human creativity”Footnote 264; his characterization of legal reasoning as “technical reasoning”Footnote 265; and of law as “a vastly complex cultural object, comprising a vocabulary with artfully assigned meanings, rules identifying permitted and excluded arguments and decisions.”Footnote 266 All of this seems quite compatible with the variability of different cultural practices in different legal systems.
General theories of law must, thus, be able to capture the diversity of legal practices and their underpinnings—including divergent conceptions of law across different legal systems. On this count, at least, NLAP is worse than other theories on offer (both positivist and nonpositivist). To be sure, this does not prove that NLAP is false. More strongly, I would argue that nothing I have said denies that Greenberg, Hershovitz, or other advocates of NLAP have contributed to our understanding of law in general. For instance, I think Greenberg is right that a full account of the conditions under which law can be genuinely or (to use a more recent language) “robustly” normative must refer to moral considerations. Moreover, Greenberg’s argument about the insufficiency of linguistic considerations to settle questions about legal content is, to my mind, persuasive.Footnote 267 In a similar vein, Hershovitz’s theory is a useful reminder of the fact that the concept law can be fruitfully understood in multiple ways, and that which use is most appropriate will depend on our theoretical and practical aims. And in Law Is a Moral Practice, in particular, Hershovitz makes important contributions to our understanding of the way in which legal practice changes what we morally ought to do. The problem is that these theories have not been able to show how their insights are compatible with equally valuable insights about law that are suggested by a more comparative perspective that focuses on other salient legal systems, such as modern civil law jurisdictions. Nor have those theories grappled, more importantly, with the fact that examples and observations from the discursive and cognitive practices of such legal systems might undermine or at least problematize their observations and illustrations drawn from American legal practice. This significantly undermines the explanatory power of their theories—which, again, are framed as general theories about law as such.Footnote 268
VII. Conclusion
There are important divergences between the legal cultures of different legal systems. Aspects of the law that seem fundamental to the common lawyer seem less fundamental to the civil lawyer, and vice versa.Footnote 269 A general explanatory theory about the nature of law should capture this heterogeneity and avoid the reification of contingent aspects of specific legal cultures. As I have argued, on this front at least, NLAP faces an important challenge. Some American lawyers might think of their practice as moral, of legal reasoning as a form of moral reasoning, and of the question of what separates law from other normative orders as irrelevant. Other American lawyers are skeptical and think law is just politics all the way down. Both of these images—the noble dream and the nightmare—derive from contingent features of American legal culture.Footnote 270 A general theory about the nature of law should be able to capture these aspects, as well as the very different commitments that underlie the legal cultures of other legal systems.
This raises the question of whether a fully general theory about the nature of law would be theoretically fruitful or even possible. As I suggested in the Introduction, generality is a scalar property. Theories can be more or less general. My aim here has not been to suggest that general jurisprudence should aim to “maximize” generality, come what may. There are many different projects that can fit within general jurisprudence. But general claims about law should be able to fit and capture at least a variety of salient instances of law. From that perspective, NLAP faces at least an important problem.
Again, this does not settle any foundational debates about NLAP. And even within NLAP, some versions of the view might be more capable of developing strategies of accommodation. For example, while Greenberg’s theory is a metaphysical conception of the determinants of legal content in any legal system, Hershovitz’s theory can be thought of as a kind of “practice-first” approach.Footnote 271 It seems to me, then, that Hershovitz could recognize that the practices of lawyers and judges in certain jurisdictions—their approach to addressing the moral problems law must address—rely on a conceptual separation between law and morality.Footnote 272 Whether this type of strategy would indeed be successful at accommodating the conceptual variation I have discussed is, of course, an open question—and its success would depend on actually showing how the theory can accommodate this diversity of practices despite the fact that some of them seem to directly deny what the theory affirms. For now, my only claims have been that (i) NLAP seems to rely on particular, nonrepresentative aspects of American legal culture, and therefore fits uneasily with important aspects of the culture of some civil law jurisdictions; (ii) this counts significantly against NLAP’s general explanatory power; and (iii) other theories on offer can do a better job at accommodating that variation. This is not a conclusive argument about NLAP, but it is an important consideration—and one that we are likely to miss if we don’t look at jurisprudence from a comparative perspective.
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