“Is Legal Positivism Legal Literalism?”

I. The Law and Language

Unlike many subjects of scientific inquiry, the law is bound to language. Whereas

electrons are merely describable, laws are in some sense constituted by language. Physicists

discover physical truths and report them in language, but legislators and justices create and

interpret laws with language. Interpreters of legal texts attend carefully to each word selected to

determine the text’s precise meaning. The law’s content and the content of its expressions are

difficult to separate, if indeed they are separable. Language is not just a tool of legal practitioners

but an ingredient of the law. Legal scholars, then, must have much to learn from the study of

language.

Of course, legal philosophers disagree just what lessons linguistic studies have to teach.

Although many legal philosophers believe that they can accept any account of language, some

have argued that one view, often referred to as ‘legal positivism’, presupposes that a disputed

position in the philosophy of language is the correct one. Ronald Dworkin first argued along

these lines in Law’s Empire.1 Via his “Semantic Sting Argument” he accused legal positivists of

being ‘criterialists’, by which he meant those who “think we can argue sensibly with one another

if, but only if, we all accept and follow the same criteria for deciding when our claims are

sound.”2 Advancing Dworkin’s argument, Nicos Stavropoulos claimed in Objectivity in Law that

positivists could not accommodate the anti-descriptivist theories of reference offered by Kripke,

Putnam, Burge, and others.3 According to Stavropoulos, criterialists must deny that a thing’s

essence is independent of the ways in which we think of and refer to it. Many positivists

defended themselves from these charges. Some claimed that not every positivist is stung by the

semantic sting.4 Others attempted to show that criterialism does not have the consequences

1

1 Dworkin 1986, pp.31-46.

2 Ibid, p.45.

3 See Stavropoulos, especially chapter 5.

4 See, for example, Hart 1997, pp.244-8 and Endicott 2001.

Dworkin and Stavropoulos maintained.5 For a time the dialectic flourished, and now it has

petered out. Although the question never received a satisfactory answer, legal philosophers once

again operate as if no view begs any questions in the philosophy of language.6

But I believe Dworkin was on to something. The positivist is committed to the possibility

that the law can be described in morally neutral terms. The positivist’s central commitment

detaches law from one of its common purposes. Even though citizens use the law to guide their

moral deliberations, that is inessential to what the law is. The morally interested and the morally

disinterested can equally identify what the law says. But since language in some sense

constitutes the law, a view about how the law can be described might carry controversial

commitments about how language describes things. On the one hand, law is often put to moral

purposes. On the other, the description of it is supposed to be morally neutral. Do these two fixed

points entail any particular position in the philosophy of language?

In short, yes. As I will argue in what follows, any view in the legal positivist tradition

begs questions in the philosophy of language. To this extent I agree with the claims made by

Dworkin and Stavropoulos. I will not, however, charge positivism with criterialism. Instead, I

pursue a different line of thought. Positivists are implicitly committed to what philosophers of

language call ‘literalism’. Literalists hold that a sentence means something independent of the

context of its utterance. The utterance’s point plays no role in determining what it says. In short,

literalists are acontextualists. In contrast, contextualists hold that an utterance only means

something determinate when the utterance’s point informs the sentence uttered. Positivists must

be literalists and not contextualists because they aim to give a value-neutral account of law.

Positivists insist that the law is intelligible outside of the context of law’s justification, adoption,

and enforcement. This insistence is only supported by literalism.

To argue as I propose I will do three things. First, I will characterize the legal positivist,

answering who the legal positivist is and what are her core commitments (II). Second, I will

distinguish literalism from contextualism, precisifying the positivist’s linguistic commitment

(III). And finally, I will show how we get from positivism to literalism, defending two potentially

2

5 See, for example, Raz 2001 and Marmor 2005, especially the introduction and chapter 7. For a response to Raz, see Smith (2009).

6 A plethora of evidence for this can be found in Marmor and Soames 2011.

controversial premises in the process (IV). I will then conclude by suggesting some questions for

further research. Although I have introduced my argument as akin to those made by

antipositivists and I anticipate that antipositivists will be able to exploit my work, the argument

here is not yet an antipositivist argument. Here I aim not to proscribe but only to diagnose.

II.Who is the Legal Positivist?

Who is the legal positivist? What are her core commitments? She is a social scientist of

the legal world. She aims to identify when law exists and which laws exist from a perspective

independent of the interests of the citizens she studies. In keeping with her scientific tendencies,

she holds two closely related theses: the social sources thesis and the neutral identification thesis.

The first thesis is about the basic matter of a legal system; it is ontological. It says that the

existence of a law depends ultimately on merely social facts, not moral ones. The second is about

how we know about a legal system; it is epistemological. It says that we can know what the laws

are without judging what they ought to be. To be sure, positivists interpret these theses

differently.7 Nevertheless, the two theses accurately characterize the positivist tradition and can

be found in some form in works by authors central to the tradition such as H.L.A. Hart, Joseph

Raz, and Scott Shapiro.8

Let us examine more closely the two theses. I begin with the social sources thesis (SocT).

SocT holds that “legal facts are ultimately determined by social facts alone.”9 This principle

specifies the building blocks of a legal system. A legal system is a set of rules, norms, customs,

and tests that govern a community. According to SocT, such a set of rules, etc., exists and

includes its members only in virtue of what people do and think––social facts––and not what

people ought to do and think––moral facts. These social facts determine the set ultimately

because, although non-social facts might determine some content of the set, even the relevant

3

7 I will not discuss a third commitment typical of positivists, namely, the separability thesis.

8 See Hart 1997, Raz 2009, and Shapiro 2011. These are not the only central authors, but I will use them primarily to support the following characterization of the legal positivist.

9 Shapiro 2011, p.269. Shapiro calls this the Ultimacy Thesis, but I prefer the Social Sources Thesis (hence ‘SocT’). Raz also discusses a version of SocT: Raz 2009, pp.37-40. Hart does not thematize a social sources thesis, but SocT captures his discussion of legal rules in Hart 1997.

non-social facts are determined, in the final analysis, by social facts. SocT requires that only

social facts underly the existence of a legal system.

A legal system is a distinctive kind of set. Such a set of rules, etc., is defined by an

officially recognized standard for membership in the set. This standard Hart called the ‘rule of

recognition’.10 The rule of recognition is a test for legal validity: for any candidate legal

proposition it determines whether that proposition is a member of the legal system. It certifies the

pedigree of every legal rule, norm, custom, and test within the legal system, except, of course,

for itself. SocT, then, claims of the rule of recognition that its existence depends ultimately only

on social facts and not on moral ones.11 When a jurist asks whether a proposition is part of a

legal system, she must trace the proposition back to a social fact rather than a moral fact, and that

social fact will ground the rule of recognition.

SocT admits of two kinds of adherents: inclusivists and exclusivists. Inclusivists interpret

SocT such that it allows moral facts to be explicitly incorporated into the law by the language of

the rules, norms, etc., within the legal system. In other words, if a social fact that grounds a law

makes reference to a moral fact in the content of that law, then that moral fact becomes part of

the legal system. Consider, for example, the 8th Amendment of the US Constitution, which bans

cruel and unusual punishment. The inclusivist says that the existence of this ban depends only on

social facts––namely, the ratification of the Constitution and the use of the ban in hearings

concerning lawful punishment. But the content of the ban partially depends on moral facts.

Specifically, the content of the ban depends on what is really cruel, not just what is considered

cruel. If death is a cruel punishment, then it is unconstitutional to punish criminals with death

sentences, regardless of what anyone thinks is cruel. Nevertheless, a social fact remains the

ultimate source of the ban on cruel punishments even if they are not the only source of the

content of the ban.

4

10 Hart 1997, p.100ff.

11 Raz has argued that the rule of recognition does not encompass all of the legal tests for validity: Raz 1983 pp.79-80 and Raz 2009 pp.90-7. I am ignoring this point for the purposes of this paper because it changes nothing about the argument. Whatever goes for the rule of recognition goes for the rule of recognition plus whatever else is needed.

In contrast, exclusivists hold that social facts are not just the ultimate source of legal facts

but the only source. They edit SocT to read: “legal facts are determined by social facts alone.”12

Exclusivists exclude moral facts from legal facts entirely. Even when a law appears to have

moral content it does not. The word ‘cruel’ in the 8th Amendment does not invoke what is really

cruel, but rather the conventional application of the legal concept. Even if a justice believes truly

that the conventions governing the legal concept ‘cruelty’ are wrong about what is really cruel,

she would misconstrue the law if she declared that the law does not track those conventions.

Exclusivists restrict the content of the law to social facts alone.

Although inclusivists and exclusivists both hold SocT, their interpretations diverge

widely. According to inclusivists but to not exclusivists, whether some laws exist may depend on

moral facts as well as social facts. Consider again the 8th Amendment. Suppose that a

Pennsylvania statute punishes some murders with death. Further, suppose that the death penalty

is in fact a cruel punishment but the conventional legal concept of cruelty in the US does not

apply to the death penalty. Since the inclusivist holds that the 8th Amendment bans the really

cruel punishments, she must conclude that the statute in Pennsylvania is unconstitutional. The

statute is invalid: strictly speaking, there is no law permitting the death penalty in Pennsylvania.

On the other hand, the exclusivist must come to the opposite conclusion. Since the exclusivist

holds that the 8th Amendment bans the conventionally cruel punishments, he must conclude that

the statute in Pennsylvania is constitutional. The statute is valid; that law exists. The conclusions

reached by the inclusivist and exclusivist differ because they permit different tests for validity:

they place different conditions on the rule of recognition. The inclusivist allows that moral tests

be part of the rule of recognition, whereas the exclusivist does not.

Despite their disagreement, the two adherents necessarily agree on one specification of

SocT. They agree, namely, that the existence and generic content of a rule of recognition is

determined by social facts alone. A rule of recognition exists just when a community follows a

particular rule for determining what the law is. When community members recognize officials

and officials recognize a rule for sorting laws from non-laws, a rule of recognition exists. These

conditions are both just social facts. The generic content of the rule determines that the rule says

5

12 Shapiro 2011, p.269.

one thing rather than another without determining what the rule means in every case. For

example, the US Constitution contains a ban against cruel punishments and not wantonly cruel,

torturous, or sadistic punishments. This is just a social fact. But that social fact is insufficient to

determine precisely which punishments are cruel. For complete determination we would need to

consult either moral facts or more social facts, and positivists disagree over which we should

consult.

The foregoing specification of SocT is not the only univocal commitment I will exploit.

The other commitment is what I call the neutral identification thesis (NIT). NIT is about how we

access the social facts that determine the existence and generic content of the rule of recognition.

According to it, we must be able to identify the legally significant social facts without making

any moral judgments. We must be able to know what the law is without judging whether it ought

to be that way. The rule of recognition must not merely be independent of moral facts; we must

also be able to know it independently of what we happen to believe about the moral facts.

NIT can be found in many foundational positivist works. It is rendered most explicitly by

Raz: “Adhering to the social thesis eliminates investigator’s bias. It requires that the investigator

should put aside his evaluative and deontic views and rely exclusively on considerations which

can be investigated and described in a value-neutral way.”13 Raz’s call for value-neutrality is

ambiguous. Values fall into many categories: moral, prudential, aesthetic, explanatory, etc. In his

call for value-neutrality, Raz himself seems to cast a wide net, but it is not necessary that

positivists follow his lead.14 At a minimum, positivists only need hold that the ideal investigator

be neutral with respect to moral values. Thus, for my argument I will apply NIT only to moral

values.

NIT, as applied to moral values only, is common among positivists, but is it a necessary

part of positivist theory? Could they not jettison it should it lead to unwanted consequences? For

it seems we can imagine that the law is constituted by social facts alone but that, through a quirk

of human nature, we cannot access the social facts without making moral judgments. On such a

possibility, SocT would be true but NIT false. Why cannot the positivist retreat to this position?

6

13 Raz 2009 p.42. For other expressions of NIT, see Hart’s distinction between the internal and external perspectives and his discussion of law and morality in Hart 1997 and Shapiro’s description of plans in Shapiro 2011.

14 See, for example, the opening lines of Raz 1985.

What we have just imagined is, of course, possible in some sense. So, SocT does not

entail NIT. Nevertheless, positivists cannot adequately explain legal phenomena by their own

lights without NIT. Specifically, they would not be able to explain how judges recursively

constitute the rule of recognition through their patterns of behavior and attitudes. Consider a

judge deciding whether a statute is legally valid. The judge must determine whether the statute

was created in accordance with the rule of recognition. According to SocT, the generic content is

constituted by social facts alone. These social facts determine the legal facts, at least up to a

point. Among these social facts are judges’ patterns of behavior and attitudes towards them. For

the rule of recognition to exist, judges must treat some of their behaviors as a standard for legal

validity; they must take the standard-attitude toward some of their behaviors.15 For this reason,

when the judge asks herself whether the statute under adjudication is legally valid, she identifies

the social facts that undergird the rule of recognition and at the same time enacts them. She

identifies her behaviors as a standard and takes the attitude toward them that they are the

standard. If NIT is false, as we are hypothesizing, then the judge must use moral judgment when

she identifies and enacts the relevant social facts. The attitude she takes towards the relevant

behaviors must include approbation or disapprobation. But then the rule of recognition is in part

determined by the judge’s moral judgment, not the social facts alone. Her morally tinged

attitudes towards her behavior––and the relevant attitudes of the other judges––partially

determine what the law is. Whether the judge makes the right decision will depend on whether

her moral judgment is correct, at least if moral judgments are truth-apt and not all false.16 Thus,

positivists who deny NIT are unable to explain how the judge’s own behavior and attitudes

establish the existence of a legal system. They are in the odd position of excluding judge’s

explicit thoughts from among the patterns of behavior and attitudes that make the law what it

is.17

7

15 On this point see Hart 1997, p.114-6.

16 If moral judgments are not truth-apt or are all false, then this argument for NIT fails. But such a moral skeptic will probably accept NIT anyway. If he did not, he would have to hold that human beings are necessarily deluded about the world.

17 This argument does not contradict what Coleman claims in Coleman 1983. As I interpret it his claim is that some legal officials may use a rule different from the actual rule of recognition to identify the law. Their behavior does not change the rule. However, I find his disambiguation of rules of recognition (ironically) ambiguous because he does not explain the existence conditions for a rule of recognition.

We have now characterized the legal positivist. First, she holds that the existence and

generic content of the rule of recognition are determined by social facts alone. In this sense, at a

minimum, social facts are the ultimate arbiters of legal validity. Second, she holds that not only

are (some) legal facts independent of moral facts; we can know them independently of any moral

judgments we might make about the law. Later I will exploit these two characteristics to show

that positivists are committed to literalism. But first I must clarify just what literalism is.

III. Literalism and Contextualism

So far we have examined the point of departure of my argument. Now let us examine its

destination, namely, literalism. Literalism is the view that, when an interpreter interprets an

utterance, the interpreter first processes a semantic proposition before she determines precisely

what the utterance says. The interpreter processes the semantic proposition mechanically and

without reference to the point of the utterance. In contrast, contextualism holds that the

interpreter cannot process a proposition without reference to the utterance’s point. What an

utterance says is determined only after strong pragmatic effects add information from the context

to the sentence uttered. In this section I will elucidate the terms of this distinction.18

Both literalism and contextualism purport to account for what an utterance says. Each

view describes the processes that assign linguistic content to utterances. An utterance is a

linguistic expression produced within a context and able to bear a truth-value.19 Utterances are

the primary bearers of linguistic content because they are the acts linguistic agents perform. In

their performances linguistic agents utter sentences. The same words in the same order can be

uttered at different times, and those utterances can vary in meaning even though they are

constructed the same way. For this reason we can think of utterances as tokens of sentences and

sentences as the types utterances token. Any theory of language aims to explain why and how

token-utterances have the content they have in virtue of their type-sentences.

Utterances communicate information in different ways. The information an utterance

communicates can be divided into two categories. On the one hand, there is what the utterance

8

18 The discussion in this section hews closely to Recanati’s work in Recanati 2005.

19 In other words, I will limit my discussion of utterances to assertions.

says. On the other, there is what the utterance implicates. The concept ‘what an utterance says’ is

meant to track our pre-theoretical notion that utterances are constrained by the conventional

meanings of words and the rules that compose words into sentences. Here is how Francois

Recanati describes the phenomenon: “What is said results from fleshing out the meaning of the

sentence (which is like a semantic ‘skeleton’) so as to make it propositional. The propositions

one can arrive at through this process of contextual enrichment or ‘fleshing out’ are constrained

by the skeleton which serves as input to the process.”20 Thus, when I utter the sentence, “I am an

aspiring philosopher,” I say something about myself in virtue of the context filling in me for the

indexical term ‘I’. The conventions governing ‘I’ flesh out the skeletal sentence within the

context. But not just any contextual adjustments to what is said can be made. I could not, for

example, say that I am not an aspiring philosopher by that utterance. However, I could implicate

it. If, for example, I were laboring in a factory and a documentarian asked me, “What do you

do?” I might sarcastically reply, “I am an aspiring philosopher,” clearly licensing the inference

that I am not an aspiring philosopher. That is what my utterance implicates. Nevertheless, that is

not what my utterance says because what it says is conventionally limited, whereas the inference

chains of implicature “can (in principle) be as long and involve as many background assumptions

as one wishes.”21

This much is common ground between literalism and contextualism. The linguistic

content of our utterances can be divided into what they say and what they implicate. What is said

is limited by convention, whereas what is implicated is more open-ended. The two views diverge

over how to account for these differences. Literalists explain the content of what is said primarily

in terms of conventional word meanings, i.e., the semantic content of the sentence uttered. The

context of utterance only makes significant contributions to what is communicated through what

is implicated. In contrast, contextualists explain the content of what is said by means of both

semantic and pragmatic content. According to contextualists, conventional meanings are

insufficient to determine a proposition unless the context supplements the conventional meanings

with information. What is implicated, then, is explained in terms of further contextual

9

20 Recanati 2004, p.6.

21 Ibid.

information that is not needed to form a proposition from the semantic content uttered. Since this

difference between literalists and contextualists is crucial to my argument I will go into it in a bit

more detail.

Both literalists and contextualists must account for how sentences interact with a context

to express a proposition. Literalists claim that the semantic processes produce a framework that

specifies the gaps that require contextual input. The process that fills these gaps is a pragmatic

one called ‘saturation’. On the literalist picture, an interpreter interprets an utterance by first

building the semantic framework and then saturating that framework with contextual details.

Saturation, then, is a semantically controlled pragmatic process, what King and Stanley call a

weak pragmatic effect.22 This effect can be downstream from the point of the utterance. But it

cannot override the semantic framework and, moreover, the proper contextual addition is

obvious to any normal interpreter. The content of what is said is rule-bound and uncontroversial.

Recanati dubs this view of what is said ‘Minimalism’. Minimalists construe the

conventional constraints on what is said rather strictly. What is said “departs from the

conventional meaning of the sentence (and incorporates contextual elements) only when this is

necessary to ‘complete’ the meaning of the sentence and make it propositional.”23 The alternative

to minimalism would be to hold that what is said departs from the conventional meaning even

when it is not necessary to make it propositional. On the alternative, what is said can depart in

ways not predictable from the semantic framework of the sentence. This is the contextualist

alternative.

Contrary to the literalists, contextualists view the linguistic material provided by the

sentence as bare and defeasible. It is bare in so far as it often stands in need of enrichment before

it expresses anything in the context, and defeasible in so far as the sentence’s semantic content

might not remain or bear any obvious relation to what is said. Sentences are not only saturated by

a context but also freely enriched. Free enrichment narrows a sentence’s meaning in a way that is

not controlled by any of the semantic content. For example, if I said “John’s keys are on the

table,” the semantic content of ‘John’s keys’ does not determine any particular relation between

10

22 King and Stanley 2005, pp.118-9.

23 Recanati 2004, p.7. Compare Cappelen and Lepore’s expression of the same principle in Cappelen and Lepore 2005, pp.197-8.

John and the keys. Does John own the keys? Have they been lent to him by his office, a friend, or

a rental car agency? Do the keys, having been assigned to John by means of a swinger-lottery,

actually belong to someone else? Until one relation is determined, what is said is indeterminate.

The sentence is bare without the semantically uncontrolled free enrichment. Furthermore,

sentence-level meaning can be defeasible. If my son, Timmy, scrapes his hand in a fall and

begins to cry, I might say to him, “You’re not going to die.” What I say is not that Timmy is

immortal but that the scrape will not kill him. ‘You’re not going to die’ is freely enriched with

‘from that scrape’.24 What I say presupposes that Timmy can die and so the seemingly literal

content of my utterance is not part of what is said at all.

The contextualist looks to the point of an utterance as much as the conventional meaning

to determine what an utterance says. The conventions that constrain meaning are only one pole

of the interpretive process. They are not the sole authority but are responsible to the most

plausible point of the utterance in the context. By ‘point of the utterance’ I mean what makes the

utterance relevant. In general the point of an utterance is to answer a question.25 Since the

question cannot be explicitly encoded in the assertion, the point of the assertion can be

controversial. Every interpretation is open-ended. No matter how convincing an interpretation

seems on the basis of assigning a point to the utterance, “it can always be overridden if enough

new evidence is adduced to account for the subject’s behaviour.”26 There is no interpretive

bedrock.

Contextual open-endedness reveals a key difference between how each view interprets

semantic content. Literalists treat semantic content as indefeasible. Every utterance says its

semantic content. The literalist interpreter cannot interpret what is said to be inconsistent with the

semantic content of the sentence uttered. The constraints shackle what is said to the semantics of

the utterance. In contrast the contextualist interpreter can treat the conventional constraints as

defeasible. What a sentence-uttered-in-context says can vary in such a way that the semantic

11

24 I am lifting this example from Recanati who in turn lifted it from Kent Bach.

25 See Gadamer 2004, “The Hermeneutic Priority of the Question”.

26 Recanati 2004, p.54

content is no longer part of what is said. The conventional constraints provide a harbor from

which the interpretation embarks but to which it need not return.

This much should suffice for a description of literalism and its alternative, contextualism.

In the next section I will put this characterization to work. There I will show that legal positivists

are committed to literalism because only literalism makes it possible for the legal interpreter to

identify the content of legal utterances without making moral judgments.

IV.Positivism and Literalism

Recall the two central characteristics of the legal positivist. The legal positivist believes

that, a) the existence and generic content of the rule of recognition is determined by social facts

alone; b) an observer can know the existence and generic content of the rule of recognition

without resort to moral judgment (NIT). The first characteristic allows me to capture both

inclusivist and exclusivist positivists in the same argument. The second characteristic, closely

connected to the first, will serve as the first premise in my argument. The argument runs as

follows:

1) Positivists hold NIT.

2) The point of a legal system––and, consequently, its rule of recognition––is to resolve moral

problems.

3) An observer can only identify a moral problem by making moral judgments.

4) By 2) and 3), an observer can only identify the point of the rule of recognition by making

moral judgments.

5) We can express every rule of recognition canonically.

6) The point of the canonical expression tracks the point of the rule.

7) By 4) and 6), the observer must use moral judgment to identify the point of the expression.

8) By 1) and 7), when interpreting the expression, the positivist observer must be able to

understand the expression without reference to its point.

9) Since only literalism supports this kind of interpretation, positivists must be literalists.

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I have already argued for step 1). In steps 4), 7), and 8) I just manipulate the previous

premises and definitions; I need not defend them. Premises 5) and 6) are uncontroversial;

nevertheless, I will briefly elucidate them. Only premises 2) and 3) require a defense. Why must

positivists agree that legal systems solve moral problems? Why must an observer use moral

judgment to identify a moral problem? I must answer these questions. But, first, I will treat

premises 5) and 6).

Premise 5) makes a rather weak claim. It says that it is possible to express a rule of

recognition so that most legal experts would agree that the rule is adequately represented. It does

not say that laws must be written nor that every nuance of a rule must be explicable all at once. It

merely rules out that a rule of recognition could be inexpressible. After all, what would an

inexpressible rule be? Unless one is a behaviorist, one must think that a rule is at least a pattern

of behavior that fits a standard. The standard, then, classifies the behavior, and classifications are

the sort of thing that are expressible. The premise also does not say that no legal experts would

disagree over the proper application of the rule of recognition in any case. Rather, an expression

is canonical merely when most experts accept it as the rule that generally distinguishes what is

legally valid from what is not. They need agree on a wide scope of applications but not all. A

canonical expression may give rise to controversy.

Premise 6) clarifies the role that the canonical expression plays. The canonical expression

has a privileged context, namely, the context in which it answers the question of legal validity. As

with any sentence, an utterance’s point may vary from one context to another; the question the

utterance answers may change. A future anthropology student might ask, “What was the rule of

recognition in the ancient United States?” To which her teacher might gloss, “The laws enacted

in accordance with the US Constitution.” Furthermore, I might utter a rule of recognition

sarcastically or as an example. In these cases each utterance has a different point than the

canonical one. On the other hand, when we consider the rule of recognition in its canonical

expression, we consider it in its canonical context, that is to say, we consider it as the basis to

answer the question, is this law valid?

We now must examine the two controversial premises, 2) and 3). The two premises relate

legality to morality. The first relates the existence of a legal system to the moral problems a legal

13

system solves. The second relates those moral problems to our moral judgments. The premises

raise two important questions. Why ought we treat legal systems as responses to moral

problems? And why must we use moral judgment to identify the moral problems? To answer

these questions I will, first, clarify what I mean by the category ‘moral’; second, show that any

claim that something falls under that category requires moral judgment; and, finally, show that

the category is necessary for distinguishing between legal systems and other systems of rules.

The moral is a kind of value. It is distinct from other kinds of value such as the

prudential, the aesthetic, and the epistemic. All of these kinds of value share at least one

property: no simple description can capture all of their members adequately. The aesthetic, for

example, is not so narrow as the beautiful but not so wide as what is pleasurable in perception.

So with the moral, it is not as narrow as what is right and not so wide as what one ought to do.

Nevertheless, we can identify some typical features of the moral. The moral involves respecting

other persons as equals who have the power to direct their own lives. Moral considerations often

take the form of what one person owes another or what life-plans are worth pursuing. Moral

values are binding on everyone or make an appeal to everyone prior to any choice someone

might make.27

Moral values are the basic instances of the moral category. They are the targets of moral

judgments and moral problems. A judgment is a moral one when its truth or falsehood depends

on the existence of a moral value. Often moral judgments tell us how to satisfy the demand the

value places on us or cite––whether explicitly or implicitly––the value as a reason for an action

or social arrangement. Similarly, a problem is a moral one when it arises from a moral value. We

face a moral problem when a moral value places an unsatisfied demand on us or gives us a

reason to refrain from an action or to change a social arrangement. That is to say, the judgments

or the problems are moral when they are about the values that support the duties we owe to each

other or the long-term life goals we set. When I say, “Cutting funds for welfare programs will

reduce the scope of free choice for a significant number of American citizens,” I offer a reason,

grounded by freedom, against cutting funds. When I say, “It is wrong that our laws are binding

on those who have no say in what they are because the laws limit their freedom without

14

27 I do not mean to beg any questions against the skeptic. Here I am merely describing the sort of thing a moral value is if moral values exist.

empowering them to change the laws,” I identify a moral problem as a problem of freedom. In

this way, moral judgments and moral problems are about moral values.

So far I have defined the key moral terms in premises 2) and 3). Now let us turn to the

arguments for them. I begin with premise 3): an observer can only identify a moral problem by

making moral judgments. The premise is supported by the following thought. Even the judgment

that a judgment or problem is about a moral value is a moral judgment because such a judgment

depends on a background moral theory. When I call a problem a moral one, I conceive of it as

about a moral value rather than a non-moral value or a non-value entity. I cannot defer to

someone else on which are the moral values and which situations, relationships, and actions

satisfy or violate which values. Even if I hold that moral values do not exist, I must say which

those values are and which descriptions of situations, relationships, and actions ought to be

emended. I would at least be committed to the counterfactual judgment that such-and-such a

value would be moral, if moral values existed. Moral problems and moral judgments do not

admit of value-neutral descriptions.

Why should anyone believe all this? Because it is a special consequence of Quine’s

argument for the indeterminacy of translation.28 Quine demonstrated that, when a linguist

concludes that a foreign expression is synonymous with an expression in her own language, she

must rely on hypotheses that she cannot observe among the speakers of the foreign language. He

argues as follows. Imagine a linguist studying a foreign language that includes the expression

‘gavagai’. The speakers say, “Gavagai,” whenever they spy a rabbit. This seems like good

evidence that the expression “Gavagai” is synonymous with the English, “Lo, rabbit.” Yet many

other translations of “Gavagai” are consistent with the pattern of expression observed by the

linguist. For example, she might translate it, “Lo, undetached rabbit parts,” “Lo, instances of

rabbithood,” or “Lo, a series of rabbity time-slices.” In so far as those different sentences are true

and false in the same circumstances, the different translations are irrelevant. The expression

‘gavagai’ heralds a rabbit. But if the linguist then treats ‘gavagai’ as synonymous with the term

‘rabbit’, the differences are no longer irrelevant. Since ‘rabbit’, ‘instances of rabbithood’, etc.,

are not synonymous terms in English, the linguist must decide how the speakers refer to the

15

28 See Quine 1960, or for a more perspicuous version of the same argument Quine 1969.

rabbit scenes. Different ways of referring cut up the rabbit-scenes differently: different terms

analyze the rabbit scenes into different constituent parts. They presuppose different ontologies.

Therefore, complete description of the language must project an ontology onto the speakers. This

projection enables the observations and cannot be verified by them.

Just as the linguist must choose among ontologies, so the jurisprude-cum-anthropologist

must choose which values the people she studies treat as moral. Imagine the jurisprude observing

a self-governing village. She sees a pattern that every thirtieth day, the villagers bring a portion

of what their labors have produced to the (apparent) government office. They hand this portion to

the officials, who redistribute it a week later. Thirty days later, the social scientist encounters two

neighbors preparing again for the ritual. The first neighbor stops preparing and asks the second,

“Why do we do this? Why can’t we keep what we produce?” The second neighbor replies, “Well,

we give about twenty percent of our produce because that is what the officials have deemed a fair

and effective contribution to maintaining peace through a government and a social safety-net.

And we ought to have a government do this for us because peace allows us to flourish and lead

good lives of our own choosing and we ought to ensure that those with whom we live are free to

do the same.” The first neighbor then continues preparing.

The jurisprude records this conversation exactly as it occurred, and observes and records

many others like it. She then infers that the villagers believe that moral principles justify their

legal system and that their legal system solves moral problems. In particular, she judges that the

redistribution aims to solve a problem of freedom. So far as I have described the case, it might

seem that the jurisprude need make no moral judgment in order to report when the villagers

make moral judgments. Her judgment is true just if whatever makes a judgment moral is present

in the villagers’ judgments. It seems she herself makes no judgment about what makes a

judgment moral in her report. So why, then, do I claim that she must make a moral judgment for

herself?

The reason is the same one that leads us to conclude that the linguist presupposes a

particular ontology. To clarify the analogy, we should make a distinction between kinds of report.

First, the jurisprude can report a quotation. For example, she can report that a villager said,

“Taxation promotes freedom.” Here the jurisprude merely repeats the villager’s vocalization

16

without translating it into her own idiom. Second, she can report, using her own words, that a

villager made a judgment with a particular content. For example, she can report that a villager

said of taxation that it promotes freedom. Here the jurisprude translates the villager’s quote into

her own idiom. Call the first a ‘Q-report’, and the second a ‘C-report’. Since Q-reports merely

communicate symbolic material, such as phonemes and graphemes, and the scenarios of their

utterance, a Q-report may be made without making any judgments about the meanings of the

terms within the quotation. The jurisprude may quote the villager without making any moral

judgment. She can even discern its truth-conditions, up to a point at least, by observing when it is

accepted and rejected. Unfortunately, Q-reports communicate very little information because

they carry no commitments about the internal content quote. When the jurisprude makes a Q-

report, her audience may understand that the utterance is, for example, reason-giving but they

cannot understand what kind of reason is given. Just as the correspondence between ‘gavagai’

and ‘rabbit’ is concealed at the sentential level, so is the correspondence between ‘free’ as the

villagers use it and our term ‘free’, which refers to a moral value.

C-reports, on the other hand, communicate the content of the judgments reported. When

the jurisprude makes a C-report, she enables her audience to understand not only the conditions

for assertion of the sentence but also the meaning of the individual terms. She allows her

audience to understand, for example, not only that the quotation is reason-giving but also what

reason is given. She, for example, transfers from quoting, “Taxation promotes freedom,” to

claiming that the quote means that taxation promotes freedom. Among other things, she must

judge that the word ‘free’ refers to the moral value we call ‘freedom’. But she could not do so

unless she presupposed that the villagers were engaged in moral discourse when they uttered the

sentence. She could not infer from observation alone that the villagers were engaged in moral

discourse because for any hypothesis that a quotation is about a moral value there will be

another, equally explanatory hypothesis that it is about a non-moral value. Just as the linguist

cuts up rabbit-scenes differently when she translates ‘gavagai’ as ‘rabbit’ rather than ‘undetached

rabbit parts’, the jurisprude cuts up the reason-giving-scenes differently when she interprets

‘free’ as a moral value rather than a prudential value or an aesthetic value.

17

Notice that the jurisprude’s judgment that “Taxation promotes freedom” is a moral

judgment, is itself a moral judgment in the same way as the villager’s. “Taxation promotes

freedom” is a moral judgment because a moral value grounds the assertion. The judgment picks

out one of the moral values and offers it as a reason for something. Similarly, the jurisprude’s

judgment is about a moral value. The jurisprude’s judgment rests on whether freedom as it is

used in the villagers’ reason-giving scenarios is a moral value. No amount of further research

could obviate the jurisprude’s presupposition. Even if she asked the villagers whether their

concept ‘freedom’ refers to a moral value, she would still need to presuppose a translation

between her concept ‘moral’ and theirs. To collect this evidence, she must use her own

judgments about which values are moral and how they are manifested in order to collect the

evidence. However self-evident her observations might seem, the judgements are not morally

neutral. And she must making these judgments to understand how the villagers justify their laws.

To borrow a quip, the cagey jurisprude is a caged jurisprude.29

From these considerations it follows that we cannot identify moral problems unless we

make moral judgments. When I say, “This responds to a moral problem,” about some pattern of

behavior, I must claim that the situation to which the pattern of behavior responds manifests

some moral value(s). I must commit myself to a claim about which values are moral. When I

determine which problems are relevant morally speaking, I cannot do so from a morally neutral

standpoint. Applying this lesson to my argument, we conclude that if the rule of recognition

solves moral problems, the point of the rule of recognition can only be discerned through moral

judgments.

This much defends premise 3). Now we move to premise 2): the point of a legal

system––and, consequently, its rule of recognition––is to resolve moral problems. I will defend

this by arguing that a legal system can only be distinguished from other systems of rules because

a legal system solves moral problems. The argument has two parts: first, that non-legal systems

of rules, like sports leagues, have rules of recognition; second, that other features typical of legal

systems, like coercion and appeals, can also be found in non-legal systems of rules.

18

29 Quine 1969, p.3. The original quote reads, “The cagey linguist is a caged linguist.”

Legal systems are not the only systems of rules. Other associations have rules that

determine which rules associates are to follow. Corporations, private clubs, and sports leagues all

follow rules for establishing the rules. Take Major League Baseball (MLB) as an example. MLB

publishes the official rules of baseball. Although not everyone plays according to these rules,

MLB sets the standard for baseball and its rules are binding on the players in its league. If one

has a question about what rule governs a bit of MLB play, the MLB rulebook is the authoritative

source. During a game, the rules are adjudicated and enforced by umpires. Otherwise, they are

adjudicated and enforced by the league office. The league even has an official process for

changing the rules. A committee representing players, umpires, executives, and the league office

vote on recommendations for changes and the commissioner reviews their recommendations,

ultimately deciding whether they will go into effect. In sum, we can say that the rules of MLB

are the rules authorized by the office of the commissioner, who makes his authorization known

by publishing the rulebook. Thus, just like a legal system, MLB has a rule of recognition, but it is

not a legal system.30

A rule of recognition is not sufficient to distinguish legal systems from other systems of

rules. I propose that the only way to distinguish between a legal system and an organization like

MLB is by reference to morality. The rule of recognition of a legal system, but not a non-legal

system of rules, aims to solve moral problems. Of course, MLB’s rule of recognition aims to

coordinate how its players play the game and how the organization decides how the players play

the game. But these are not moral problems of coordination. For, playing baseball is a wholly

optional activity. Anyone who gets fed up with how MLB runs itself can leave the organization

and continue playing baseball elsewhere, although not as lucratively. The point of MLB’s rule of

recognition is merely to settle a non-moral coordination problem. Even though MLB should not

create rules that violate the organization’s moral obligations, the demands of morality act as side

constraints on how MLB and other private associations solve their coordination problems. The

problems they aim to solve are not moral. So it is with all private associations.

19

30 Shapiro makes this same point in his criticism of Hart’s theory, Shapiro 2011, p.92. However, he leaves it as an unelaborated remark. Nevertheless, he draws the same conclusion regarding law’s moral point as I do here, albeit for different reasons.

Legal systems, on the other hand, aim to solve moral problems. We can motivate this

thought by observing two things. First, the rules of a legal system limit the citizens’ freedom

regardless of whether they have consented to the rules. Even citizens of a democratic regime are

bound by rules to which they did not consent. And in particular, the rule of recognition is never

consented to by the citizens born into its regime. Hence, second, the rule of recognition limits the

members’ freedom to determine how they collectively create new legal rules. Whereas, in private

associations, the members of the system can knowingly agree to the rule of recognition, members

of a legal system have the rule of recognition thrust upon them. But this creates a problem. If the

citizens cannot consent to the rule of recognition, then something else must justify that the rule

of recognition governs them. Their loss of freedom must be accommodated. This is one of the

moral problems that the rule of recognition tries to solve: how to accommodate the freedom to

determine the rules by which one lives one’s life when one cannot consent to the rules

beforehand.

Let me clarify two potential misunderstandings. First, I do not mean that the rule of

recognition is binding only if it solves the moral problems that it ought to solve. I do not intend

to address what makes a legal system and its rule of recognition binding. My claim is merely that

moral problems are among the conditions that make legal systems possible. In a world without

moral problems legal systems do not exist.31 But legal systems exist even when they fail to solve

moral problems. Furthermore, to say that a legal system is conditioned by the moral problems it

aims to solve is not to repudiate SocT. For the rule of recognition may still be ultimately

determined by social facts alone. Moral facts need play no role in the content of the rule of

recognition. And no moral facts determine the existence of the rule of recognition because, of

course, the moral problems may exist but nothing aim to solve them, let alone a legal system.

Thus, the law’s moral point is consistent with the separation thesis as Hart interpreted it32 and, in

fact, is endorsed by Shapiro.33 Raz certainly never denies that the law has a moral point and I

20

31 A consequence of my line of argument is that moral skeptics cannot account for the difference between legal systems and other systems of rules

32 To be sure, Hart writes that there is no necessary connection between morality and law. Nevertheless, he admits of some necessary connections. See Hart 1997, chapters VIII and IX. And for discussion see Lyons 1983.

33 See Shapiro’s criticisms of Hart’s theory and his discussion of the “circumstances of legality” in Shapiro 2011.

have not contradicted Raz’s charge that believing in strong connections between law and

morality mystify the law.34

Second, my claim does not depend on the intentions of the creators of the legal system.

My claim is true even if the law-givers do not intend to solve any moral problems. For it is a

claim about whether what law-givers create is in fact a legal system rather than a system like

MLB. Legal systems are binding on their members regardless of actual consent and make their

members unfree to decide for themselves what they otherwise could. Legal systems must meet

these conditions, regardless of the law-givers actual intentions. At most, these conditions require

that the law-givers and other legal officials treat the members of the system as bound without

consent and that a normal interpreter could interpret the rule of recognition as responsive to some

moral problems (the problem of freedom at least).

I have argued that we must hold that the law has a moral point in order to distinguish it

from other systems of rules such as MLB. But perhaps MLB lacks other features typical of legal

systems. Legal systems tend to be coercive. If a citizen violates the law, the officials can compel

the citizen to pay a penalty and newly comply. Indeed, we often say that the legal system

monopolizes coercion. But this is a half-truth. Although the legal system is the last authority on

what coercion is permitted, other organizations, like MLB, coerce their members as well. For

example, MLB prohibits their players from using steroids and from “doctoring” the ball with

foreign substances. If a player violates one of these prohibitions, he is liable to be fined or

suspended without pay. MLB sanctions players for breaking MLB’s rules; thus, it coerces players

to comply. Coercion is not distinctive of legal systems.

Legal systems also tend to permit appeals against how they apply their rules in given

cases. While legal systems have final authority over coercion, they also provide measures

whereby citizens may force the officials to confirm that their coercive measures are justified by

the rules of the system. Is the combination of coercion and appeal distinctive of legal systems

when compared with organizations like MLB? Unfortunately, no. MLB provides its members

with an appeals process. In some cases––e.g., the review of positive steroids tests––a body of

21

34 See generally Raz 2009, 1985.

three impartial mediators decides the case. So, that members of the system have the power to

force the officials to review their own decisions is not special to legal systems.

It should be no surprise that both legal and non-legal systems of rules have the typical

measures for governing according to their rules. Once an association establishes offices governed

by rules binding on anyone who holds the office, the other measures become efficient means to

their ends. So, it seems futile to rifle through the features linked to rule creation, adjudication,

and enforcement. The clearest distinction is the manner in which the rules bind the members of

each kind of system. But, as we have already seen, this distinction makes a moral difference.

IV.Conclusion

The preceding argument establishes that the positivist must be a literalist. The positivist

approaches the law as a merely social institution. That there is law and what the law is, is

ultimately determined by social facts alone. And, granted that legal systems address moral

problems, the positivist must treat these moral problems separately from the existence and

content of the moral law. The content of the legal system must be independent of its point. Only

a literalist account of meaning allows for content and point to be individually intelligible.

The argument diagnoses an as yet unappreciated positivist commitment. Although

antipositivists have charged positivists with linguistic commitments before, none have charged

them with literalism. Building an antipositivist argument from the literalist position would take

me beyond the scope of this paper. Nevertheless, it should be clear how one would do it. For any

argument against literalism is, a fortiori, an argument against positivism.

Setting aside how an antipositivist might use my diagnostic argument to her advantage,

consider how interesting this result is. In the sub-disciplines of philosophy we proceed as if we

can formulate any plausible position without buying commitments in other sub-disciplines. I

have argued that at least one plausible position in legal philosophy cannot avoid a

methodological commitment in the philosophy of language. Consequently, we might wonder

whether other positions in legal philosophy have similar commitments. Can any antipositivists be

literalists? Do legal realists have methodological constraints? Furthermore, we might wonder

whether positions in other sub-disciplines presuppose literalism or contextualism. Is there

22

something special about legal philosophy that it cannot avoid commitments in philosophy of

language? All these are questions for future exploration.

23

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