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March 11, 2009


Paul Gowder

For some reason firefox crashes when I try to download the paper. But the problems with this argument are pretty obvious on your summary:

1) Not all restrictions, even a priori restrictions (which I assume is what he means by "given by reason"), on the power of an authoritative body are moral in character. Even an omnipotent English Parliament is unable to square circles or declare pi to be 4. (Indeed, on some theological accounts, even the sort of deity who is allegedly prior to morality is unable to do those things!) Neither can such a Parliament declare that the speed of light in a vacuum is 15mph or that objects, when dropped, fall up. Such things are simply beyond the domain of human law, positive or otherwise.

2) Why can't we just say that rules of recognition can have any coherent content? If rules of recognition were allowed to have incoherent content, the rule of recognition in a jurisdiction could be something like everyone's favorite "the green is either." What an uncharitable interpretation of positivism that would be. It seems like rules of recognition that entail logical paradoxes (or rule of recognition/statute pairs that entail logical paradoxes) are just as incoherent.

Michael Steven Green

It sounds like the problem Carlson discusses was formulated before by Alf Ross. See Alf Ross, On Self-Reference and a Puzzle in Constitutional Law, 78 MIND 1 (1969). I think Ross also solved it.

Keep in mind that a rule of recognition may not change without a revolution occurring. The rule of recognition identifies the fundamental conditions of legal validity for the system and so is not subject to legal change – that is, change within the legal system. (Of course, it can change extra-legally through a revolution.) If the rule of recognition is truly “whatever the parliament enacts is law”, then it follows that it cannot be changed legally. So the statute that attempts to change the rule of recognition, making it such that whatever the parliament enacts is not law, is simply invalid. It is true that this is a limitation on the content of the laws that the Parliament may enact, but this is not a moral limitation. It simply follows from the rule of recognition itself.

As an analogy, consider an absolute monarch whose word is law. If this is so, then he may not give over his power to a legislative assembly. Because his word is law, he cannot make it such that his word is not law. Once again, this is not a moral limitation, but simply follows from the fact that the rule of recognition is such that his word is law.

Ross noted however that it is often the case that amendment procedures for a constitution (which we can assume, with Ross, are part of the rule of recognition) are used to amend themselves. And yet people think the amendment was legal, not a revolution. To use our king analogy again, it sometimes seems as if a monarch has actually irrevocably delegated his authority to an assembly, without a revolution occurring. That seems to be precisely what my earlier argument said was impossible.

Ross solves this problem by saying that in these legal systems, the rule of recognition really is the following: Whatever the king says is law, unless the king identifies x as the lawmaker, in which case whatever x says is law, unless x identifies y as the lawmaker in which case whatever y is law, and so on. If so, the rule of recognition has not been changed by the king’s act of delegation. There is simply legal change in accordance with the abiding rule of recognition.

So we can say that it is possible for there to be a legal system in which parliament legally destroys its own power, but if that is so, it simply follows from the rule of recognition of that system, in a manner compatible with positivism.

If anyone is interested, I discuss the paradox of self-amendment and Ross’s solution more fully in Part V of my article “Legal Revolutions: Six Mistakes about Discontinuity in the Legal Order” http://papers.ssrn.com/sol3/papers.cfm?abstract_id=881073

Bruce Boyden

Interesting problem. I've got two quick ideas. One is, what happens if there are some legal systems that collapse into incoherency? Carlson seems to be assuming that's bad for positivism. It's bad for a mathematics built on set theory, because every deducible statement is part of the system, even if not actually made, and if a contradiction is among those potential statements, then the whole system collapses into chaos. But that's not true for law; it's not true that every potential law is part of every legal system even if it is not actually passed. It's also not true that you can derive any other absurd proposition from a pair of inconsistent laws. So a positivist account of law can tolerate the possibility of some sets of actual laws that are internally inconsistent without it undermining every legal system.

My second thought is that in the above account, the paradox is being generated by the fact that Statute S is supposed to be a primary rule that is picked out as law by the Rule of Recognition, but in fact its content looks an awful lot like another Rule of Recognition. But despite appearances, I don't think it would actually be a rule of recognition unless it was more broadly adopted than just by Parliament. I think a crucial assumption in Carlson's argument is it is a sufficient condition for a Rule of Recognition that it is expressed in a validly enacted Parliamentary statute. (E.g., the substitution of -(yεy) for Φ(x) in Proposition (2).) That seems to be confusing primary and secondary rules to me. I think what you have instead is a statute that at most happens to have the same content as a RoR. But I'm not sure it's correct to say in that case that the *statute* is a RoR; it just looks like one. So the RoR is *not* a member of the set of all things that the RoR picks out. I think this follows from the definition of RoRs and not some arbitrary condition applied in order to get around the problem.

BTW, to give the paradox maximum force, I think the RoR should be: The *only* law is statutes enacted by Parliament. In a real legal system, there'd be other sources of law that could step in.

Yonatan Arbel

Apparently this paradox and its solution were both foreshadowed by none other than the all-time favorite Monty-Python.

Somewhere in the middle of Life of Brian a great crowd starts following unwitting Brian. The crowd believes that Brian is the one true Messiah. However, Brian is not (he is actually the guy who was born next door to the Messiah) and he has also very little desire to become a religious leader. Brian just wants to be left alone (he is a troubled adolescent). The crowd, however, demands a leader and is persistent on following Brian wherever he goes. Annoyed, Brian shouts out to the crowd: “I'm not the messiah, would you please listen! I'm not the messiah, do you understand? Honestly!”, to which a woman from the crowd replies “Only the true messiah denies his divinity.”.

The crowd has a very simple rule of recognition. Whatever Brian says is the law. After all, Brian is the representative of God on earth. Brian’s law, or rather statute S, is “I am not the messiah”, i.e., the rule of recognition is invalid. As this scene demonstrates, however, there is only a very limited sense, if any, by which a primary rule can change a secondary one. No matter how hard Brian shouts, the crowd will do as he bids by virtue of the RoR. Even if the crowd will be convinced that it should no longer follow Brian, it will still be by virtue of the RoR.
My argument here echoes that of Michael Steve Green above: the different normative nature of the two types of law, primary and secondary rules, is like a valve, allowing (almost?) only one-way flow of normative power.
Here’s my inspiration: http://www.youtube.com/watch?v=krb2OdQksMc

Ian Farrell & Guha Krishnamurthi

We write with great appreciation and perhaps equal dissention: Appreciation, because we are mathematicians who have taken recourse in the law, and dissention, because we find Carlson’s argument lacking.

Initially, we should note two general points regarding Carlson’s piece:

First, while positivists are committed to the view that law and morality are not necessarily connected, this thesis is often misunderstood—and generally overblown. See Les Green’s piece on Legal Positivism in the Stanford Encyclopedia of Philosophy (http://plato.stanford.edu/entries/legal-positivism/#3, under the heading ‘The Separability Thesis’).

Second, the Carlson’s stipulated definition of ‘legal positivism’ is unpersuasive. Any definition of positivism that has both Hart and Kelsen as non-positivists is an odd definition indeed. A definition ought to describe the phenomena to which it applies; this definition excludes the two paradigm examples. One might as well come up with a definition of Kantian that excludes Kant, or Aristotelian that excludes Aristotle.

It helps little that other positivists fall within the definition: this simply shows that some positivists argue law is a closed system. Even if Carlson is correct (which he isn’t), this simply shows that Hart and Kelsen were right to deny that law is a closed system. It is hardly a refutation of positivism to say that Hart and Kelsen were correct.

Moving on to the Russellian legal paradox, Carlson says,

According to positivism, law and morality are not necessarily connected. For this to be true, it must be possible for a rule of recognition to define a set of primary rules such that every single primary rule has its origin in human legislation. It must be possible to exclude all natural laws with an origin independent of a pedigree in arbitrary human will. If this exclusion cannot be accomplished, positivism cannot claim that the set of laws can be entirely disjoint from the set of moral norms.
True, according to positivism there is no necessary connection between law and morality. But I am not sure if the following is true: It must be possible for a rule of recognition to define a set of primary rules such that every single primary rule has its origin in human legislation. Further, I don’t think the following is true: It must be possible to exclude all natural laws with an origin independent of a pedigree in arbitrary human will. Rather, I think this should be changed to: It must be possible to exclude all natural moral laws with an origin independent of a pedigree in arbitrary human will.
With that let us consider the axiom of abstraction and its positivist analogue: The axiom of abstraction is: For all properties, there exists a set whose members are just those entities having that property.
Carlson then writes,

Positivist jurisprudence is a set of sets that do not belong to themselves. The proposition of positivist jurisprudence is: Law is the set of socially conventional secondary rules by which officials recognize the set of primary rules. So conceived, law is a set of sets: law is a set of primary rules (selected by the rule of recognition). Each primary rule generates a set of legal results in the core of its meaning.
This is perplexing . . . for many reasons. For one, it is not clear how Carlson is setting up the analogy. Law is a set of secondary rules. Secondary rules are associated with a set of primary rules. And primary rules generate a set of legal results. So, law is seemingly a set of set of sets. There is nothing inherently wrong with this, but Russell’s paradox only requires a set of sets. So, it could be that Carlson wants to set up the analogy in two different ways:

He could be equating x with legal results, and y with primary rules; or he could be equating x with primary rules, and y with secondary rules. From his explanation in “jurisprudential English,” I will assume the latter.
Given that, we can piece together the legal analogue: For any rule of recognition, there exists a legal system such that for every primary rule that is a member of the legal system, a social rule of recognition establishes membership of the primary rule in the legal system.
Is positivism committed to this? I don’t see why that is true. Positivists need not be committed to the proposition that any rule of recognition will give rise to a legal system. Instead, positivism says that where we have a legal system, we must have, among other things, a rule of recognition.

But suppose we are allowed to universally quantify over rules of recognition. In the producing the Russellian paradox, we should not that Carlson makes a possibly illicit move; Carlson substitutes the rule of recognition in the positivist analogue with something Parliament has passed, namely “Nothing Parliament enacts is law.” Why are we allowed to substitute these? Why should I believe that this is a rule of recognition? This doesn’t look like a social (secondary) rule to me. It looks like a primary rule recognized by the rule of recognition.

Next, suppose arguendo that these issues are resolved in favor of Carlson. What arises from such an assumption? We find that there are certain limitations to what can be passed by parliament. By the Russellian legal paradox, we find that Parliament cannot pass the law that “nothing Parliament passes is law.” Indeed, there might be a logical limitation on this legal system. But this is not a moral limitation, and the positivist thesis does concern morality. So this is no contradiction to positivism.

But we may also question whether this is a limitation! Parliament can pass such a law. If they do, then they will have a contradictory legal system. Such things are possible (for the positivist—and otherwise). If the contradiction causes the kind of chaos to destroy the legal system, if such an act is legislative suicide, then what we will find is that it is a contingent fact that a certain set of laws could not be sustained. And, as said above, even if this were shown to be a necessary consequence, it would still not be moral limitation on law.

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