Mark Greenberg (UCLA School of Law and Department of Philosophy) has posted The Prism of Rules on SSRN. Here is the abstract:
Most legal theorists, including almost all positivists and many others, take for granted or are implicitly committed to an assumption that is not an official part of positivism. The assumption is that the content of the law is determined by the contents of legally authoritative pronouncements. I call it the Pronouncement View (PV, for short). The kind of determination at issue here is constitutive, not epistemic. That is, PV concerns what makes the content of the law what it is, not how we ascertain the content of the law.
PV is more of an organizing principle or core idea, than a precise doctrine. I have introduced PV in an unqualified form, but there are a variety of ways in which its claim could be moderated. For example, a qualified version of PV could hold that the contents of legally authoritative pronouncements play a central or predominant role in determining the content of the law.
The debate between positivists and anti-positivists is often framed in a way that takes PV for granted. For example, one typical characterization takes the debate to concern whether laws must pass a moral test in order to be valid. The use of laws here betrays an assumption that the starting point is legally authoritative pronouncements. Given this starting point, if morality is relevant it will have to be as a way of screening the content of authoritative pronouncements.
I suggest that the issue of whether a PV-based view of law is correct is more fundamental than the issue that divides legal positivists and anti-positivists, at least as the latter issue is commonly understood. For example, one common understanding of the latter issue is that positivists claim, and anti-positivists deny, that the criteria of legal validity - the criteria that determine whether a norm is legally valid - need not include moral facts. As will become clear, however, the picture of law presupposed by this way of framing the debate - according to which candidate norms qualify as legal norms by satisfying criteria of validity - is closely associated with PV and need not be accepted by non-PV-based views of law.
PV leads to a characteristic set of concerns and problems, and yields a distinctive way of thinking about how law is supposed to operate. In this paper, I will offer an alternative to PV, which I call the Dependence View (DV, for short). I begin to develop the picture of law that it yields. The discussion throughout is exploratory and tentative. The goal is to sketch the alternative picture and identify problems and possible ways of developing it, not to refute the picture associated with PV.
And a bit more from the paper:
A legal system treats the actions of its legislature and other law-making institutions as having the effect on moral obligations, powers, rights, and so on that those actions would have had if the legal system were ideally legitimate. The content of the law is constituted by this as-if moral profile. Of course, if a legal system is in fact ideally legitimate, then the actual moral profile (after the law-making institutions have acted) will concur with the as-if moral profile. It will do so because the condition of ideal legitimacy is not counterfactual, but actual.
An obvious problem for the ideal-conditions version of DV is that political morality may not give a unique specification of ideal conditions. There are plausibly many different ways in which institutions could be arranged in a maximally legitimate way.
A second problem is that even if there were an unique ideal arrangement, it might be indeterminate how to understand the counterfactual condition that a particular nonideally legitimate government be ideally legitimate. For example, in the counterfactual condition, which of the various actual institutions corresponds to each of the possibly very different institutions of the ideally legitimate government?
One possible type of solution to both problems is that when the legal system is not fully legitimate, the counterfactual condition of ideal legitimacy is to be understood by the particular legal system’s own lights. That is, when the legal system fails to operate as it is supposed to, the content of the law is constituted by the moral profile that would have obtained in virtue of the relevant actions of the legal institutions if the legal system had been ideally legitimate in light of the principles of justice embodied in the legal system itself.
A must download for anyone interested in contemporary analytic legal philosophy. Highly recommended. Download it while its hot!
