It is 9:00 a.m. PDST, and I am blogging from the American Philosophical Association's Pacific Division Meeting in Pasadena California. It's especially nice to be here--I grew up in Monterey Park a few miles to the south and lived for many years just a few blocks from the conference hotel. If only the session could be held in the glorious California sunshine!
The philosophy of law panel is especially interesting this year. Here are the details:
Invited Symposium: Philosophy of Law: What Determines the Content of Law
Chair: Deirdre Golash (American University)
Speakers: Mark Greenberg (University of California–Los Angeles)
“Foundations of Law: Moral Facts or Social Facts”
Lawrence Solum (University of Illinois–Urbana-Champaign)
“The Content of Nomoi”
Scott Shapiro (University of Michigan–Ann Arbor)
“The Planning Theory of Law”
I'm very excited by the papers by Greenberg and Shapiro. Frequent readers of legal theory blog know that I believe that "normative legal theory" (an exploration of the normative foundations of law in moral and political philosophy) is the most productive direction for legal philosophy and essential for rigorous thinking about particular legal problems and the nature of law in general. Nonetheless, and somewhat to my own surprise, I think that analytic jurisprudence addressing the "what is law?" question has recently entered a particularly vibrant period. The papers by Greenberg and Shapiro are brilliant exemplars of this work. You may think you are bored by arcane debates between inclusive and exclusive legal positivism, but Greenberg and Shapiro's work is compelling reading--addressing the fundamental questions from fresh and exciting perspectives.
If you are't familiar with Scott Shapiro's planning theory of law or Mark Greenberg's work on the "standard picture" (SP) and his "Dependence View" (DP), this session will be a superb introduction. If you aren't joining us here, then here are two other papers by Greenberg and Shapiro that will give you a sense of what will be happening this morning:
Mark Greenberg, The Standard Pciture and its Discontents:
In this paper, I argue that there is a picture of how law works that most legal theorists are implicitly committed to and take to be common ground. This Standard Picture (SP, for short) is generally unacknowledged and unargued for. SP leads to a characteristic set of concerns and problems and yields a distinctive way of thinking about how law is supposed to operate. I suggest that the issue of whether SP is correct is a fundamental one for the philosophy of law, more basic, for example, than the issue that divides legal positivists and anti-positivists, at least as the latter issue is ordinarily understood.
The goals of the paper are fourfold: 1) to identify and articulate in some detail the Standard Picture; 2) to show that SP is widely held and has important consequences for other debates in the philosophy of law; 3) to show that SP leads to a serious theoretical problem; 4) to sketch an alternative picture that promises to avoid this problem. I emphasize the modesty of these goals in one respect. I make no claim to refute SP or to fully develop and defend an alternative picture.
Scott J. Shapiro, Laws, Plans, and Practical Reason, 8 Legal Theory 387 (2002). I don't have an abstract for this paper.
My paper ("The Contet of the Nomoi") isn't available online either, but you can get a sense of the argument from the following:
Lawrence B. Solum, Natural Justice:
Justice is a natural virtue. Well-functioning humans are just, as are well-ordered human societies. Roughly, this means that in a well-ordered society, just humans internalize the laws and social norms (the nomoi) - they internalize lawfulness as a disposition that guides the way they relate to other humans. In societies that are mostly well-ordered, with isolated zones of substantial dysfunction, the nomoi are limited to those norms that are not clearly inconsistent with the function of law - to create the conditions for human flourishing. In a radically dysfunctional society, humans are thrown back on their own resources - doing the best they can in circumstances that may require great practical wisdom to avoid evil and achieve good. Justice is naturally good for humans - it is part and partial of human flourishing. All of these are natural ethical facts.
"Natural Justice" develops these claims in four stages. Part I contextualizes the claim that justice is a natural virtue in relationship to Hume's famous argument about deriving ought from is, Moore's open-question argument, and the so-called fact-value distinction. The upshot of the discussion in Part I is the claim that there are no clearly decisive objections to existence of natural ethical facts.
Part II traces the movement from neo-Aristotelian virtue ethics to virtue jurisprudence by articulating a theory of the judicial virtues. Among these are the virtues of practical wisdom and of justice. Practical wisdom or phronesis is best understood on the model of moral vision, which in the context of law is legal vision or situation sense. The virtue of justice is best understood as lawfulness. Just humans are law-abiding or nomimos - in that they internalize the widely shared and deeply held social norms of their social groups. This part concludes with the claim that a legally correct decision is the decision that characteristically would be rendered by a fully virtuous judge under the circumstances of the case.
Part III argues that natural justice can be understood on the model of natural goodness as articulated in the work of Philippa Foot and Michael Thompson. The intuitive idea is that justice as lawfulness is naturally good for reason - using social creatures in human circumstances. This part also articulates and responds to a variety of objections.
Part IV concludes by articulating the sense in which an aretaic theory of law that incorporates a natural virtue of justice as lawfulness can be viewed as an expression of the natural law tradition. The natural law idea that an unjust enactment is not a true law corresponds to two senses in which positive laws can fail to be nomoi (in the technical sense specified by virtue jurisprudence). First, a given enactment may contravene deeply held and widely shared social norms. Second, such enactments may be fundamentally inconsistent with the purpose of law - the promotion of human flourishing.
I won't be "live blogging" since I'm on the program! Hope to see you here.