How much a theory of law can tell us about the nature of morality: a response to Mark Greenberg's How facts make law
| Autor | Kenneth Einar Himma |
| Cargo | University of Washington School of Law |
| Páginas | 132-164 |
How much a theory of law can tell us about
the nature of morality: a response to Mark
Greenberg’s How facts make law
Kenneth Einar Himma*
1. Introduction
Although every theory of the nature of law acknowledges that the con-
tent of the law is determined by contingent social facts regarding the prac-
tices of persons who function as officials in a legal system, legal positivism
is distinguished from other theories in that it holds that, ultimately, these
social practices are, at bottom, the sole determinants of legal content. The
content of the law, on this view, is determined by the legislative and adju-
dicative activities of officials who have adopted and follow (or “practice”) a
rule of recognition to govern these activities. The rule of recognition is the
basic legal norm that determines whether any other norm has the status of
law (and thereby defines the criteria of legality, which is not, strictly speak-
ing, a norm1) and itself has the status of law in virtue of the contingent
social fact that it is something like a convention practiced by the officials in
a system where citizens generally conform their behavior to the norms that
count as law under this rule.
Positivists, of course, are divided on the issue of whether morality can
play a role in determining legal content. Inclusive positivists, like Jules
Coleman, argue that moral norms can play a role in determining the con-
tent of the law; if officials practice a conventional rule of recognition that
* University of Washington School of Law.
1 See, e.g., HIMMA (2005).
Direito, Estado e Sociedade n.40 p. 132 a 164 jan/jun 2012
miolo Direito 40.indd 132 22/01/2013 16:10:25
133
incorporates moral principles as criteria of legality, those principles play a
role in determining the content of the law. Exclusive positivists, like Joseph
Raz and Scott Shapiro, deny moral principles can be incorporated into a
rule of recognition and hence deny they can play a role in determining
the content of the law; on this view, law cannot be authoritative or make a
practical difference in the behavior of subjects on the inclusive positivist’s
assumption that the rule of recognition can incorporate legal principles;
and it is a conceptual truth that law is authoritative and/or can make such
a practical difference.
In any event, inclusive and exclusive positivists agree that (1) the
content of the rule of recognition is determined entirely by social facts;
(2) the content of the rule of recognition, together with social facts about
the practices of officials, fully determine the content of all other law;
and (3) moral norms – or moral facts (i.e., true propositions expressing
the content of those norms) – play no necessary role in determining the
content of the law. If moral facts play a role (or could play a role) in de-
termining legal content, it would be because there is a social practice as-
signing them that role. The ultimate determinant of legal content would
thus remain social facts about the practices of officials.
In contrast, anti-positivists deny the view that social facts are the only
necessary determinants of legal content. Classical natural law theorists,
like Aquinas, and neo-classical natural law theorists, like John Finnis, hold
that what counts as legal content is necessarily constrained by norms of
morality; according to classical natural law theorists, unjust norms cannot
count as law. Similarly, Ronald Dworkin argues that the moral principles
showing the existing institutional history (e.g., including social practices
that provide the basic furniture of the law, like courts and legislatures) in
the best moral light also play a necessary role in determining the content of
the law. Although Dworkin sidesteps the issue of whether his theory makes
any conceptual necessary claims, it must do so if construed as opposed to
legal positivism.
In his outstanding paper “How Facts Make Law,” Mark Greenberg sides
with anti-positivism and with Dworkin’s version in particular. He argues
that descriptive facts about certain social practices are not the only neces-
sary determinants of legal content. In addition, he argues that “value facts”
– which he is committed to construing as moral facts – are another neces-
sary determinant of legal content. As he describes his position:
How much a theory of law can tell us about the nature of morality:
a response to Mark Greenberg’s How facts make law
miolo Direito 40.indd 133 22/01/2013 16:10:25
134 Kenneth Einar Himma
Given the nature of the relevant kind of determination, law practices – un-
derstood as descriptive facts about what people have said and done – cannot
themselves determine the content of the law. Value facts are needed to de-
termine the legal relevance of different aspects of law practices. I therefore
defend an antipositivist position (HFML 160; emphasis added).
Here it is utterly essential to emphasize that, in siding with Dworkin
as an antipostivist, Greenberg logically commits himself to the idea that
moral facts “are needed to determine the legal relevance of different aspects
of law.” It is obvious that value facts of some kind will be needed to de-
termine legal content: if, for example, judges had no values whatsoever,
they would not be able to choose one interpretation of the law as better
than another. Values will play a role, on anyone’s theory, in contributing to
the decisions legislatures and courts make about legal content. Moreover,
insofar as law is at least sometimes normative, there will have to be values
that are the foundation for its normativity. But a positivist can hold this
view because the values might be prudential, rather than moral, and be-
cause it is ultimately the social process of promulgation and interpretation
that determines legal content – even if human beings must make some sort
of value judgment to determine which content is better.
Further, it is important to notice that this commonplace would not
be metaphysically necessary; it might not even be a general psychological
truth of all human beings. One can surely imagine a possible legal system
in which a court or legislature makes a decision on the basis of a coin-flip
– a process that doesn’t obviously reflect the expression of or commitment
to a value. Greenberg’s claim is one of metaphysical necessity: it is meta-
physically necessary that value facts partly determine legal content.
Although Greenberg’s substantive view of law resembles Dworkin’s, his
argument is utterly novel and noteworthy for its rare combination of cre-
ativity and depth. Unlike Dworkin, who defends his view on the basis of
a morally informed conception of what role law ought to play in a society,
Greenberg defends his view “on the basis of very general philosophical
considerations unlike those on which Dworkin himself relies” (HFML 160)
that are metaphysical in character and do not involve normative or meta-
ethical claims. Indeed, Greenberg takes his argument to show, more gen-
erally, that descriptive facts about social practices cannot, by themselves,
rationally determine the content any social rule; value facts play a necessary
role in rationally determining the content of any set of social rules.
miolo Direito 40.indd 134 22/01/2013 16:10:25
Para continuar a ler
PEÇA SUA AVALIAÇÃO