The Structure of Social Practices and the Connection between Law and Morality &ast

The Structure of Social Practicesand the Connectionbetween Law and Morality*

GIORGIO BONGIOVANNI, ANTONINO ROTOLO,CORRADO ROVERSI, AND CHIARA VALENTINI

Abstract. In his work, Jules Coleman has held that the rule of recognition, ifconceived of as a shared cooperative activity, should be the gateway through whichto incorporate moral constraints on the content of law. This analysis, however,leaves unanswered two important questions. For one thing, we do not know whenor even why morality becomes a criterion of legality. And, for another thing, westill do not know what conception of morality it is that we are dealing with. In thisarticle, we will attempt to clarify in greater depth what relations there are betweenthe social practice of law and morality. We will thus see how the cooperative natureof social practices imbues law with a moral force, and how this makes it possibleto establish a “weak” connection between law and morality: To see this, we willneed to single out some basic features of cooperative social practices, thus settingout a suitable framework for the view just mentioned.

1. Introduction: Inclusivism, Social Practices, and Morality

One of the best-known and debated contributions that Jules Coleman hasmade to legal theory lies in his negation of the separability thesis, a thesisregarded as essential to legal positivism (Coleman 2001a, 2001b). Thesignificance of this negation is that we must recognize the role that moralprinciples can play in determining the validity of legal norms, which is tosay that “morality can be a condition of legality,” so that “the legality of

* An earlier version of this paper was presented at the conference Inclusive Legal Positivism andBeyond: The Perspective of Jules Coleman (University of Bologna, 12–13 May 2008). We wouldlike to thank Jules Coleman and the other participants for their helpful comments. This paperforms part of a larger inquiry into the role of morality in social practices. Some of the thesespresented here have also been discussed at seminars held at the University of Kiel, Germany:many thanks to Robert Alexy and the Kiel group of legal philosophy for their valuablecomments, too.

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norms can sometimes depend on their substantive (moral) merits, not justtheir pedigree or social source” (Coleman 2001b, 100).1 Unlike exclusivelegal positivism, this form of positivism acknowledges “not just that moralprinciples can sometimes figure in legal argument; not just that suchprinciples can be binding on officials; but that sometimes they can bebinding on officials because they are legally valid or part of the commu-nity’s law and—most significantly—that they may even be part of thecommunity’s law in virtue of their merits—provided the rule of recognitionin that community has such provisions”. Hence, this role of morality, itscapacity to act as “a condition of legality in a particular legal system,depends on a social or conventional rule, namely, the rule of recognition”(Coleman 2001a, 108–9).

The idea that “there is no inconsistency between the core commitmentsof positivism and the existence of moral criteria of legality” (ibid., 67) isdeveloped by Coleman through an analysis of the characteristics of the ruleof recognition. What is important about this analysis, among other things,is the fact that it underscores the “normative” force of the rule of recog-nition, a force deriving from the fact that the social practice out of whichthe rule takes shape is a cooperative practice. The possibility of viewingthis as a duty-imposing rather than only as a power-conferring ruledepends on the “normative structure” of social interaction, a normativestructure deriving from the cooperative nature of such interaction.Coleman, as is known, uses the concept of a “shared cooperative activity,”a concept developed by Michael Bratman to point out that this activitycarries a normative force connected with the mutuality of cooperation,meaning that cooperation requires “mutual responsiveness” as well as a“commitment to joint activity” and a “commitment to mutual support”(Bratman 1999). The practice underlying the rule of recognition is such thatthose with whom the practice thrives “share an intention to a commongoal,” even though they may be moved by different reasons and interests:The rule’s “normative” weight thus derives from the cooperative nature ofthe underlying practice.

This argument has the advantage of making it possible to overcomethe separability thesis, for it enables us to draw a “distinction between thegrounds and the content of the criteria of legality” (Coleman 2001a, 107). AsColeman explains, “the grounds must be a social fact (a convention amongofficials), but the criteria themselves need not state a social fact.”2 Hence,the social derivation of law can be made consistent with the law’s inclusionof moral criteria, and the way to do this is by drawing a distinction

1 This latter reference is to the social-source thesis, widely known for its statement in Raz1979.2 Exclusive legal positivism, by contrast, “claims both that the rule of recognition must be asocial rule, and that the criteria of legality set forth in it must be social sources” (Coleman2001a, 107–8).

2 Giorgio Bongiovanni et al.

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between the existence conditions of the rule of recognition and its content.So framed, the separability thesis is “a claim about the content of themembership criteria of law,” while “the social fact thesis makes a claimabout their grounds, or existence conditions” (ibid., 152). Recognizing thestatus of law as a conventional social fact, then, does not imply that “whatcounts as a criterion of legality” must be reduced to “social sources”only—a consideration that, from an inclusivist perspective, opens thepossibility for the relevance of moral criteria.3

This analysis, however, leaves unanswered at least two important ques-tions. For one thing, we do not know when or even why morality becomesa criterion of legality: If we have an argument showing that it may becomesuch a criterion, we should want to know what exactly its role is. And, foranother thing, we still do not know what conception of morality we aredealing with: Is it a positive morality, critical, or evolutionary? The twoquestions just briefly mentioned bear importantly on Coleman’s theory.Any argument showing that morality may play a role as a criterion on thebasis of which to produce valid norms through the rule of recognition mustalso be an argument that can clarify the nature of this role, especially inlight of the distinction between the content of the rule of recognition andits existence conditions, since these two sides of the distinction mightotherwise appear completely unrelated.

In what follows, we will enter into these questions and attempt to clarifyin greater depth what relations there might be between the social practiceof law and its morality. We will thus see, in Section 3, how the cooperativenature of social practices imbues law with a moral force, and how thismakes it possible to establish a “weak” connection between law andmorality. But to see this, we need to single out, in Section 2, some basicfeatures of cooperative social practices, thus setting out a suitable frame-work for the view just outlined.

2. On the Structure of Social Practices

2.1. The Teleological Element

Coleman’s main thesis on the normativity of the practice of law is that thispractice entails a certain degree of cooperation, and that on such coopera-tion rests the “strong” normativity of the rule of recognition (namely, itsbeing a duty-imposing rule: Coleman 2001a, 88–9).4 It is not clear whetheron Coleman’s approach all practices entail strong normativity as well as

3 For Coleman (2001a, 108), “the basic premise of inclusive legal positivism [. . .] is therejection of the pedigree or social source constraint on legality.”4 Strong, or practical, normativity should not be confused with epistemic normativity, whichis concerned with the way in which the concept of law should be framed (see Coleman 2001a,55–6).

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cooperation, but if this approach is reframed as a general theory of socialpractice, it will be clear that such “strong” normativity can differ inpractice, and that it can admit of degrees depending on the typical functiona practice has in society and on what might be called the “social support”that this function can rely on.

Coleman would probably not agree with such a generalization, givenhis explicit skepticism about the notion of a “typical function” of prac-tices and of the practice of law in particular, a skepticism that is con-nected with his rejection of Dworkin’s constructive interpretation. Wewill not discuss here Coleman’s objections to Dworkin’s method, but willfocus instead on his general view of practices and their functions.Coleman is quite clear in this regard in arguing that social practices havefunctions, except that “it is not obvious that they must have essentialfunctions, such that two institutions could not be institutions of the samekind unless they had the same function” (Coleman 2001a, 184, n. 12;italics added). And as regards the practice of law in particular, Colemanobserves:

It is important to note that not every jurisprudential theory must or does imputea proper function to law. Not only does my theory of the concept of law not relyin any way on ascribing a proper function to law, it does not even rely on the claimthat law has a function. In fact, I deny that law has a function in the traditionalphilosophical sense. (Coleman 2001a, 205, n. 32)

What Coleman denies is not that law can be ascribed a function, or thatlaw can serve specific ends in particular situations: He is rather maintain-ing that law cannot be said to have a typical function, and indeed it isdoubtful to him that practices can generally be interpreted in this way (seealso Coleman 2001a, 194).

Coleman is quite accurate in this regard in drawing a distinctionbetween the possible and the typical functions of a practice. For example, incriticizing the way in which the Law and Economics movement interpretsthe practice of tort, he sharply distinguishes between attributing a contin-gent function to something, on the one hand, and arguing that a functionforms part of the nature of something, on the other:

I do, however, want to insist that there is a significant gap between, on the onehand, the goals or functions that a social practice may happen to serve, and, on theother hand, the goals, functions, and other features that constitute the nature of thatpractice and tell us what it is. (Coleman 2001a, 14)

Rejecting any functionalist approach to the practice of tort law, Colemansets up the method of explanation by embodiment of a principle (seeColeman 2001a, 7–8, 54ff.). In his view, it is not a function but a principlethat best explains the practice of tort law, and more precisely the principle



whereby the “individuals who are responsible for the wrongful losses ofothers have a duty to repair the losses” (ibid., 15).

It seems to us, however, that while Coleman’s criticism of the function-alist approach adopted by Law and Economics is sharp and effective, arejection of this approach does not necessarily commit one to rejecting allfunctionalist approaches to the conceptual analysis of practices, and thereason for this lies precisely in Coleman’s distinction between the possibleand contingent functions of a practice, on the one hand, and its typicalfunction, on the other. Consider this example out of Coleman’s ownexperience:

Recently, I received an invitation to attend a tribute in honor of a colleague. Iengaged my colleague in the hall to congratulate him for an honor well deserved.He responded, sardonically, that it was merely a fundraiser. One goal of theevent—one of its functions, if you like—may well have been connected to a desireto raise money for the organization honoring my colleague. But that does not tellus what the event is. It is a tribute. To analyze the concept of a tribute in terms ofthe goal of fundraising is to miss something about what tributes are. (Coleman2001a, 15)

Clearly, that fundraising tells us nothing about the nature of a tribute, inthat the function of fundraising is contingent with respect to a tribute, doesnot entail that there is no essential or typical function connected with thenature of tribute-making—in fact it could even be argued that the verynotion of a contingent and possible function of tributes as fundraiserspresupposes that tributes have a typical function. And this may well be trueof other practices, too, such as competitive games and law, for it is after alltrue of our most fundamental linguistic practices. Consider the case ofspeech acts such as assertions. We can certainly use an assertion like “Itfeels cold in here” in order to have somebody close the window, andhaving somebody close the window certainly does not tell us anything inthis case about the nature of assertions; this does not mean, however, thatassertions do not have the typical function of stating a proposition as true.After all, this was the main point of J. L. Austin’s distinction betweenperlocutionary and illocutionary acts: The effects produced by an illocu-tionary act (as distinguished from a perlocutionary act) are such that ifthese effects are not produced, the act cannot be said to have beensuccessfully performed (Austin 1976, 116). Now, inasmuch as Coleman isquite careful to distinguish practices as such from acts within a practice(see, for example, Coleman 2001a, 146), it seems that we can bring hisexample into analogy with Austin’s consideration and say that a tributewill as such succeed even if the connected fundraising proves disappoint-ing. Not so if no mention or appreciation is made of the life and works ofthe person to whom the tribute is dedicated, for in this case the resultingceremony will not be a tribute at all. And this is tantamount to saying that



in honouring or showing esteem for someone lies the point of a tribute, orits typical function.5

The thesis that a practice must have a point, or typical function, seemsto be supported as well by the following consideration. In a deep andprovocative paper of 1969 entitled Rules and Practices (Schwyzer 1969),Hubert Schwyzer argued that an activity carried out in keeping with afull-fledged system of rules but devoid of any function would be impos-sible to understand (and would ultimately be meaningless) even for theparticipants themselves: Such an activity would be pointless. Suppose, forexample, that we have the system of rules of chess but do not know thatchess is a game. In such a situation, chess players would be able to makeperfectly executed checkmates without being able to explain why they aredoing so. And suppose, further, that chess is played in some cultures as agame (meaning it is typically played for fun), while in other cultures it isa practice engaged in as a religious ritual (it is typically engaged in toworship God). Would we say that chess is the same practice in these twocultures, or would we say that it is two different practices having similarrules? The latter description seems more accurate, because the conse-quences and import associated with chess in one culture would certainlybe different from its consequences and import in the other, and the samegoes for the kind of social pressure the rules of chess exert in the twocultures.

Clearly, it is not a simple matter to investigate the typical function ofsocial practices—particularly when a practice is deeply “entrenched” insociety, as in the case of law—and this is why such enquiries are sometimescontroversial. We submit, however, that these difficulties are not so insur-mountable as to make this a desperate attempt. In fact, we have toinvestigate the typical function of a practice if we want to clarify itsstructure, and this consequently also applies to the practice of law. We willnot attempt to argue here for any specific typical function ascribable to thepractice of law, but we do believe that many of the objections that havebeen made against the very possibility of a typical function ofthe practice of law can be avoided on the basis of four assumptions asfollows:

5 We are using the terms point and function interchangeably even though it is clear that theyare not equivalent: In a strict sense, a point can only be attributed to an act or an activity,while a function can be attributed to anything, from a social practice to a stick. Further, whilethe point of an activity seems to be the intended purpose of those engaged in the activity, thefunction this activity serves can even be something its participants do not mean to be servedor do not even know is being served. Thus, a social scientist could argue, on a Marxistapproach, that the function of social democracy in a bourgeois society is to forestall classstruggle and revolution; but surely this is not the intended function of social democracy andof the officials participating in it. This explains the qualifier typical that we tagged to the nounfunction. We will therefore say that the point of a practice is to serve the practice’s typicalfunction.



(a) The typicality of a practice’s function (its point, or goal) can becontext-dependent: For example, there is no need to postulate auniversal concept and function of law, because its typical functioncan be investigated by reference to a given context.

(b) Complex social phenomena, such as the law, need not be understoodas consisting of a single social practice: It could be a cluster ofdifferent and functionally related practices, each with the typicalfunction specific to it.

(c) The interpretation of typical functions can be more or less contro-versial depending on the social importance and on the import thepractice has in different contexts.

(d) Inasmuch as the content of a typical function may be a matter ofcontroversy, the function itself will objectively emerge in the courseof general practice, even though different participants in the practicemay have different private reasons for engaging in it.

To sum up, we hold that inherent in any practice is a teleological element,that is, a more or less defined typical function—the point of the practice—without which the practice would not exist at all and could not beidentified within a given context. Certainly, interpreting such a typicalfunction may make for controversy among the participants, especially withregard to complex practices that are deeply entrenched in society andwhose import is perceived as crucial. Still, central to the teleologicalelement are some core features absent which the practice would not existas such in the given context in which we find it.

2.2. The Technical Element

While Coleman doubts that law has a typical function, he observes thatlegal positivists do generally understand law as having a “distinctivefeature,” in that law pursues its ends by appealing to rules of conduct:

Whatever ends it serves, [. . .] the distinctive feature of law according to mostpositivists is that it serves these ends through rules that purport to guide conduct.Law guides conduct by offering reasons for action. (Coleman 2001a, 101)

The idea that law pursues its ends in a distinctive way that determinessome of its characteristic features seems extendable to most, if not all, otherpractices. We can see this if we only switch the terms of the previousmental experiment in which chess was considered as an instance of twodifferent practices. In that experiment, we imagined the same system ofrules having different functions, but let us imagine, now, different systemsof rules having the same function: a place called Merrytown whoseresidents worship God in entirely different ways, some by hunting, some



by playing chess, some by dancing and singing, some by laying outsumptuous banquets, and so on. Would we say that we have here the sameritual practice or a variety of such practices? It would seem that we can ineffect speak of a single ritual practice in Merrytown, but this only on thecondition that we find a trait common to all the different activities carriedout in Merrytown for ritual purposes. Thus, an external observer ofMerrytown, such as an anthropologist, could find that these different waysof worshipping God (hunting, playing, singing, feasting, and so on) havetheir common element in their being different examples of pleasurable orgratifying activities carried out as a group, and that the ritual practice inMerrytown can be identified as “worshipping God by doing something atonce sociable and enjoyable.” An anthropologist looking to identify some-thing as a single practice will have to find some kind of unifying material,procedural, or formal element (however flexible it may be) serving as themeans through which the practice is carried out or its purpose is achieved.Hence, it seems that among the identity conditions of a practice there mustbe a distinctive or at least a roughly identifiable way of pursuing its typicalfunction. Again, the argument seems supported by reference to linguisticpractices such as speech acts. And indeed Searle’s speech-act theory andillocutionary logic require all speech acts to have a set of distinctivepreparatory conditions and modes of achievement through which theyrealize their typical illocutionary point. A promise, for example, is not apromise if it does not concern a future act of the promisor, and a commandthat does not invoke a position of authority is not a command but a request(cf. Searle 1969, 57ff.; Searle and Vanderveken 1985, 15–6).

Our thesis, then, is that in addition to a teleological element, a practicemust also have a technical element, that is, a recognizable set of typical rules,procedures, and modes of achievement through which the practice servesits typical function. Clearly, as with the teleological element, the interpre-tation of these procedures and modes of achievement can be controversial,depending on the complexity of the practice and on its social importance.If the social import of a practice is strong enough—if one of its conse-quences, for example, is that someone can be locked up for life—thenpeople are likely to have strong feelings when it comes to interpreting theprocedures by which the practice is framed and the modes by which toachieve its point, and this will correspondingly be a controversial matter:It will spark a debate and prove somewhat intractable. Less so in the caseof a practice that is not so crucial for the life of individuals.6 The degree

6 Even the same practice can occasion varying degrees of controversy. An example is teamsports (such as soccer, tennis, and baseball): These competitive games can be played just forfun among friends; recreationally as part of a youth program; or professionally in a majorleague, club, or association—and the more we move up the ladder, the more the rules andprocedures will be formalized, and the more it will be crucial to establish an authorityempowered to interpret these rules and settle disputes.



to which these procedures and modes of achievement is formalized willtherefore depend on social factors: This has been argued, for example, byNeil MacCormick in his account of how informal practices become insti-tutional orders (see MacCormick 2007, 22ff.). As MacCormick (ibid., 24–5)maintains, the progressive formalization of what he calls an “informalpractice,” or a “normative order,” usually involves the establishment of anauthority whose task, among others, is to explicitly set forth the rules andprocedures framing the practice and to state what they mean (or what theircontent is), and this is certainly the case with the practice of law, in whichan appeal to authority is crucial.

It seems to us, however, that a more general observation can be made inregard to MacCormick’s thesis. Which is to say that the more a practice isformalized, the more it will require us to single out different roles withinthat practice, making explicit the distinction between participant, rule-maker, rule-interpreter, and rule-enforcer, for example, depending on howdistinct these roles are. In this sense, authority can be considered a specialrole within a practice, and so—under specific conditions, and particularlyin the case of practices having an important social function—the definitionof roles within a practice’s technical element can include the establishmentof an authority. In the practice of law, in which the interpretation of a rulecan make all the difference for the life of an individual, authority forms anessential part of the technical element, and maintaining a stable, unified,and accepted system of rules therefore becomes the main point of itsactivity.

It must be stressed here that the way in which a practice’s typicalprocedures relate to its point is essential to the concept of the practice itself:This is a relation (between procedures and point) that cannot be dissolvedwithout thereby significantly changing the concept in question. To play acompetitive game, for example, is to compete under a more or less definedsystem of rules for fun. If we remove the point of having fun, all the whileretaining rule-bound engagement as its typical mode of achievement, wemay end up with a duel or even a highly regimented form of war (onedefined by strict rules of engagement) but would no longer recognize thisas a game: We would see the competitive side of the practice but would nolonger describe the participants as players. Conversely, if we take outrule-bound engagement as the mode by which to achieve the point of thepractice, all the while retaining the point of having fun through the activityor of excelling at it, we may end up with a form of collective amusementbut could no longer describe it as a competitive game.

2.3. The Intentional Element

A practice is finally defined by an intentional element. In comparison to theother elements, this is probably the one that has received the most attention



in Bratman’s model of shared cooperative activities and in Shapiro andColeman’s application of this model to the practice of law. Indeed, asScott Shapiro writes, the primary aim of Bratman’s discussion is to lay outthe “intentional structure” of shared cooperative activities (see Shapiro2002, 414).

A practice’s intentional element can be understood as a shared coopera-tive attitude that participants take in order to achieve the point or typicalfunction of the practice (its teleological element) by way of procedures andmodes (its technical element) recognized as typical for the achievement ofthat point. Bratman devotes to shared cooperative attitude a full discussionanalyzing the idea into three fundamental ingredients: mutual responsive-ness, commitment to the joint activity, and commitment to mutual support(see Bratman 1999, 105). Shapiro (2002), for his part, has shown howBratman’s model can be modified to accommodate authority in the practiceof law. And Coleman, as we have seen, has brought this cooperativeattitude into relation with the strongly normative, duty-imposing nature ofthe rule of recognition (see Coleman 2001a, 96–8).

What we would like to stress here (however much this may strike manyas obvious) is that a practice’s intentional element does not necessarilycoincide with an active mental state of those participating in the practice.Indeed, while a practice does require for its existence a minimal core ofcooperative attitudes on the part of its participants, it does not always ordecisively depend on any private, subjective mental states of these par-ticipants, since intention can be ascribed to them objectively in their roleas participants. When different roles are defined through the practice’stechnical element, intention will differ depending on the specific roleeach participant is playing. Here, too, we can draw on the analogy withlinguistic practices such as speech acts. If I make a promise to somebody,this person (the promisee) and anyone else who witnessed my gesture willbe ready to say that it is my intention to act on my words and hence tokeep my promise: This is what Searle has called a promise’s “sinceritycondition” (see Searle 1969, 60). But, clearly, this condition does not implythat I must really be sincere in order for something I say or do to qualifyas a promise: There is no mental event—no need for me to presentlyentertain in my mind a state of intention—that stands as a conditionsubject to which I may be considered a participant in the practice ofpromising, for it is rather the people around me (those who have witnessedthe transaction) that ascribe to me an intention in my role as a promisor.In fact, I can well make a promise without intending to keep it, but I cannotmake a promise and concurrently say I do not mean or intend to keep it,as in “I promise you I will do X but do not intend to do X.” Similarly, Ican well cheat at chess (successfully so, meaning that no one will notice),but I cannot point out to my opponent that I am cheating and then pretendto be a genuine player. In both cases we would have a pragmatic paradox,



and this fact is evidence that, while I need not properly intend to keep mypromise to be a promisor or intend to play honestly to be a player, theascription of such an intention is essentially connected with my role as apromisor or with my role as a chess player.

2.4. Summary

We have argued that practices are essentially defined by three basicelements, namely:

• A teleological element, meaning a point or typical function of thepractice, interpreting which will make for more or less controversydepending on the social importance of the practice and on its import.

• A technical element, meaning a recognizably defined set of modes(procedures, rules, or schemes) by which to achieve the point of thepractice. Even these modes of achievement will be more or lessformalized depending on the social importance of the practice and onits import: Almost invariably, this process of formalization entails theestablishment of authoritative roles defined for the purpose (amongothers) of making, interpreting, and enforcing rules.

• An intentional element, meaning a shared cooperative attitude of theparticipants, an attitude aimed at achieving the point or typicalfunction of the practice (its teleological element) by way of modes (thetechnical element) recognized as typical with respect to the same point.This cooperative attitude need not entail a mental state of the par-ticipants but is rather an attitude attributed to them by virtue of theroles they are each playing within the practice.

We have thus presented a general framework applicable to social practicesin general and to law in particular. We will now explain how morality canfind its place within this framework.

3. Morality, Cooperation, and Authority in Law

The idea that the criteria of legal validity are established conventionally,through a rule of recognition, leads inclusive positivists to conclude thatthis rule should be the gateway through which to incorporate any moralconstraint on the content of law. In Coleman, the rule of recognition isframed through his conception of law as a shared cooperative activity, orSCA (Coleman 2001a, 97), and this suggests that law’s ability to incorporatemorality hinges on the intentional element of law as a social practice.

But while it makes sense that morality can play a role in social practicesby helping to make them cooperative, this does not yet clarify the specificway in which such incorporation works in the social practice of law



understood as an SCA. In fact, the idea of an SCA is at once too broad andtoo narrow in this respect, for on the one hand, an SCA need not haveanything to do with the law and, on the other, there is nothing to ensurethat it can incorporate constraining moral values simply by virtue of itsbeing cooperative.

In the remainder of this paper, then, we will use the frameworkdeveloped in Section 2 to clarify what distinctive relations there might bebetween the social practice of law and its morality. Our argument will runas follows:

1. First, we will discuss how the structure of an SCA should be adjustedto reflect the peculiarities of law. This will bring into play ScottShapiro’s (2002) analysis of the role of authority structures in the law,but we will argue that his view cannot fully explain why one authoritystructure might be more appropriate than another for a given practice.

2. Second, we will discuss the reasons against the view that a conven-tional account of legal practices need not rely on any idea of morality,arguing in particular that such an exclusion will prevent us fromexplaining the stability of legal practices.

3. Third, we will argue that morality is decisive in making cooperationeffective and so in supporting the stability of authority-based prac-tices such as the law.

3.1. Shared Cooperative Activities and Authority Structures

Bratman’s SCA model has been criticised by Scott Shapiro (2002), amongothers (Dworkin 2002; Smith 2006), as inadequate for describing the law,since it fails to account for the role of authority, the core technical elementof legal practices understood as any practice making it possible to live byor enforce a unified system of rules.

In any conventional account of the law, Shapiro argues, we shouldconsider that officials “intend that the group create or maintain a ‘unified’system of rules” and “be committed to resolving disputes that might ariseconcerning the membership of this set or the proper application of any ofits elements.” And since “the commitment to resolve disputes is usuallydischarged by the commitment on behalf of legal participants to accept astrongly hierarchical authority structure” (Shapiro 2002, 419–20), it followsthat no unified system of rules can be maintained or explained unless asuitable authority structure is identified within the practice.

And yet, as Shapiro also argues, the kind of authority structure thepractice of law rests on cannot be identified by treating this as a coordina-tion problem. For in that case, an authority structure could be selected byrelying on David Lewis’s (1969) concept of convention, and this wouldmake the choice arbitrary: A coordination problem is such that almost any



authority structure will fit the needs of the practice, and the “players’preferences that all act on a certain solution can always be ‘flipped’ to someother solution” (Shapiro 2002, 392; cf. Coleman 2001a, 92ff.). This is toomuch latitude for a practice in which the technical role of authority is sofundamental. Hence the need to rely instead on a notion of cooperation, asin the SCA model.

At the same time, Bratman’s SCA model should be adjusted to takeinto account the role of authority, on the basis of an interplay in which(a) an authority intends its directives to be reasons for its subordinates,and (b) these subordinates accordingly intend the directives to be reasonsand act consistently with them in working out their subplans (Shapiro2002, 408ff.). In this way, the intentions of all the participants in thepractice can interlock vertically, between authorities and subordinates,and everyone’s subplans can mesh under the same practice (vertically aswell as horizontally).

This in turn requires making adjustments to Bratman’s SCA as a schemeof mutuality, meaning that the commitment to mutual support must changeinto a commitment to mutual compensation, such that “each agent, unlessotherwise directed, is committed to compensating for the lack of informa-tion or ability of the other in playing her role in the joint activity. Thiscompensation may take the form of helping others complete their tasks or,in the case of an authority, reassigning tasks to others who are able toperform the tasks adequately” (ibid., 409, 431ff.). A further adjustment isthat an authority may use coercion, as indeed often happens, whencooperation needs to be made more effective. Thus, while cooperativeactivities often rely on a non-coercive scheme, cooperative activities in lawoften do need coercion, at least “as a mere backup strategy” makingindividuals aware that “coercion follows only when they have failed to liveup to their previous uncoerced commitments” (ibid., 411). Coercion, then,does not give rise to any incompatibility when the participants areassumed to have already accepted a hierarchical authority structure func-tional to the achievement of a collective goal.

Shapiro’s analysis carries two important and related consequences:

1. Legal practices are conventional but not arbitrary: “The convention-ality of legal practice entails that the acceptance by individuals of anauthority structure depends in part on the fact that others accept thesame structure as well. It does not, however, imply the stronger claimthat there exists some other authority structure such that generalconformity to it would be treated as a reason to accept that structureinstead” (ibid., 436–7).

2. Authority structures are exclusively grounded in social facts, withoutany necessary reference to morality: Plans “create and define roleswithin practices and generate the rights and duties” and so “have this



normative power in virtue of their capacity to organize the behaviorof participants” (ibid., 438).

The first consequence supports the thesis that an authority structure canemerge without having to depend on an explicit agreement of the partici-pants or on any direct intention on their part, for it rather emergesobjectively out of their interaction. The second consequence is likewiseimportant for those positivists who, like Shapiro, deny the role of moralityin establishing an authority structure in legal practices.

Shapiro’s model rests on two assumptions: (i) that an authority’s ordersto its subordinates function not just as reasons for action but also asobligations, and (ii) that the authority will generally be complied with. Inthese two assumptions lies the main weakness of Shapiro’s model.

As Bratman has observed (2002, 517), not “all reasons to follow an orderare obligations to follow an order,” meaning that reasons alone will notexplain why an order can generate an objective obligation, or even whichorders can do so. Bratman does appreciate that Shapiro’s model “does notdepend on the subject’s actually intending that the orders be reasons,” butthen “a defense of this story will [. . .] appeal to moral principles ofassurance-based obligation” (ibid.). This suggests that Shapiro’s construc-tion does not adequately explain why one authority structure will prevailover another. Note that the problem is not to single out one authoritystructure as superior to the others by way of a general statement (as happensin natural-law theory), but to reason from within the practice, and hencefrom within convention, and point out the internal factors involved inleading the participants to select an authority. Shapiro’s model proves inthis respect incomplete, however valuable it may be in other respects.

We believe that these shortcomings can indeed be overcome by recogniz-ing a role for morality. As we will see, the problem of explaining the choiceof an authority structure capable of establishing obligations and assertingitself is closely connected with another problem, which is to explain howlarge-scale practices such as the law can succeed even though its participantsor the group as a whole may not be fully committed to the collectiveenterprise and may not specifically intend it to succeed (Kutz 2000, 92ff.). Wecould trivially assume here that the practice will succeed if the majority ofits participants are truly cooperative and committed, but our aim is preciselyto state what it is that makes them so, or what factors will minimize theirweak “participatory” intentions (see ibid., 81), thereby preventing therelative practices from falling apart.

3.2. The Stability of Authority (or Lack thereof) and the Practice of Law

Two stability concerns seem central in reconstructing any legal practice. Onthe one hand, we need a stable authority structure. This is the core



technical element of the practice of law, for it cannot be that legal authority“can always be ‘flipped’ to some other solution” (and this arbitrariness canin principle be eliminated not by justifying a chosen authority solution butby explaining why one solution will emerge over the others). The secondconcern has to do with the resulting rule system: This too needs to rest ona stable foundation, for we could not otherwise show legal rules to bebinding. If the practice’s ground rules were anything less than binding, itsparticipants could freely withdraw their commitments at any time, thusjeopardizing the practice itself.

Half-committed people—those with weak “participatory” intentions—can sometimes pose a threat to the overall stability of the practice. Suchweak attitudes are mainly driven by the prospect of short-term personalgains made possible at least to some extent by the group effort. Uponmaking such a short-term gain, these persons may feel they are no longercommitted to the collective outcome, and may even resolve to work againstthe group. For if one person’s acceptance of an authority structure dependson everyone else’s acceptance of the same structure, then there is nothingto prevent someone who is only half-committed to the group from exploit-ing the collective effort for personal gain when the opportunity arises andmaking this a constant theme. This shift from weak cooperation to “sub-version” illustrates the free-rider problem, showing that if we rely exclu-sively on the interaction between self-interested individuals to account forpractices, we will be unable to explain how these practices give rise toobligations (Habermas 1999, sec. 3), for we could ask: Do I have theobligation to do my share in cooperating for mutual advantage wheneveryone else is doing the same and I can reap the fruits of their labour?Surely, no one can hold me to any such obligation simply by virtue of theiracting cooperatively in such a way that I, too, can benefit from their efforts?(Nozick 1974, 90–5).

If the bulk of the participants in a practice were non-cooperative,everyone would have an incentive to act against the collective goal, andthe practice would therefore collapse by failure of its teleologicalelement. Of course, social cooperation in legal practices does not need anunswerving commitment to the collective outcome or a correspondingobligation to comply with the law, but a general commitment and com-pliance do have to be there. The legal system can therefore sustainmarginal non-compliance, but there is a point beyond which non-compliance undermines individual motivation to comply and systemiccollapse ensues (see Hart 1994, 117–23). And such non-cooperation posesa special threat when directed at the authority structure, since this is thecore technical element through which the collective activity is madestable.

Shapiro recognizes this problem in discussing the weak “participatory”intentions of unhelpful subordinates of the former Soviet system:



Officials of the former Soviet system might have resembled the unhelpful subor-dinates. Many Soviet officials believed that the communist system was evil andwould have preferred that a different system were in place. Yet the communistsystem was [. . .] the only mode of social advancement available. Hence they joinedthe legal system [. . .] by performing their tasks competently. However, they alsowished that others would not act competently and that the system would even-tually collapse. (Shapiro 2002, 431)

For Shapiro, there needed to be at least a majority of participants com-mitted to the collective outcome, because the practice made no other optionavailable. If the majority of officials had preferred a different system,free-riders would have caused the system to collapse sooner or later. But,again, it seems that Shapiro does not explain why the majority of officialssupported the system so that the unhelpful subordinates would see it asthe only available option.

On what conditions will the majority of participants refrain from be-coming free-riders? What factors can neutralize or at least minimize thefree-rider problem in legal practices?

3.3. Cooperative Effectiveness, Morality, and Authority

Three main factors can concur in minimizing the free-rider problem withregard to the choice of an authority structure: self-interested reasons,coercion, and moral reasons. Self-interest generally does a poor job ofkeeping free-riders in check. In fact, as we saw, it is self-interest that mainlyaccounts for the shift from weak cooperation to “subversion.”7 Coerciondoes instead figure as a typical component of legal practices and will notnecessarily pose a threat to cooperation so long as it is treated as a backupstrategy. However, this strategy requires that coercion be institutionalizedfrom the start, since it assumes that the participants have roughly accepteda hierarchical authority structure functional to a collective goal. Coercioncan, on these conditions, contribute to the emergence and maintenance oflegal authority, but it cannot do this alone, especially not in the long run,unless we assume it to be unrealistically pervasive and effective.8 It is no

7 But see, e.g., Brandt 1979, 220, arguing that selfish individuals, too, will adopt standards ofaction that “arouse least total resentment, counting both numbers and intensity; and henceequalitarian principles will tend to be more viable.” See, contra, Sturgeon 1982, 410.8 Imagine two individuals playing the Prisoner’s Dilemma indefinitely. As is well known, thisgame finds a unique Nash equilibrium in non-cooperation, but if indefinitely repeated, the“mutually desirable [cooperative] outcome [. . .] in every period is stable if each playerbelieves that a defection will terminate the cooperation, resulting in a subsequent loss for himthat outweighs the short-term gain” (Osborne and Rubinstein 1994, 133). This analysis,however, proceeds on the highly idealized assumption that (i) each player will punish anyother non-cooperative player, having an incentive to do so, and that (ii) any deviant player,once punished, will realign and “pursue the mutually desirable outcome” (ibid., 135ff.).Repeated games assume that punishments always act as efficacious deterrents, but this isoften unrealistic.



accident that totalitarian regimes that have achieved relative stability havealso relied heavily on propaganda and done their best to hide their crimesto the people: No system can be stable without legitimacy, and propagandaand secrecy are functional to this purpose (Alexy 1996, 219–20). In sum,even though self-interest and coercion can contribute to the stability ofauthority in the practice of law, no such practice can dispense withmorality.

If morality should play a role, then, how should we include it in ourframework? We will say that, in this role, morality makes some minimalstructural claims regardless of the content that it may take. In particular,moral rules claim

• objectivity, claiming their content and validity are independent ofsocial conventions;

• universality, claiming they apply to everyone independently of cir-cumstances;

• austerity and stringency, claiming they will not prima facie admit ofany exceptions; and

• bindingness and “authoritativeness,” claiming they can bind us inde-pendently of conventional authority.

The point here is that morality does not in fact have to be independent inall these ways: It does not have to be objective, universal, austere, andauthoritative. It only has to display a corresponding phenomenology:Moral rules need simply be treated this way, as if they formed part of anobjective reality (Mackie 1977; Blackburn 1984) that made them universal,austere, and authority-independent.

Here is a direct consequence of this understanding of morality: Eventhough we may believe that moral rules are conventional—they are notin themselves universal, and objective—we are not inclined to treat them,structurally and functionally, as we would any other conventional rule,such as the rules of law. Or rather, we do treat moral and legal rulesalike from an external point of view, in that we regard both of them asconventions (however different they may be in other respects), but notso from an internal point of view. Thus, suppose I feel bound by ageneral obligation not to kill and would like you to comply as well: Iwill not say that this rule is binding on you because this is the generalpractice but will instead invoke moral reasons. Which is to say that mypublic justification for this obligation will not consist in showing it to bebinding as the outcome of a conventional agreement, even though it maybe fine for the conventional rules of law to be so justified (convention-ally), and this may well be how those in the practice will come to regardsuch rules on reflection. The peculiar feature of morality, then, is that bydefinition it comes with reasons that, from the internal point of view of



a conventional practice, act as directly binding obligations (Habermas1999, 25ff.).

If that is how moral rules work, they can play a key role in keeping legalpractices stable: Morality supports cooperation by getting behaviours toconverge. A similar idea has been defended by Jürgen Habermas (1999)and Alan Gibbard (1990), who present morality as functionally orientedtoward effective cooperation, which it helps us to achieve by offeringstrong standards subject to which a type of behaviour within the practicemay be deemed acceptable. And it seems too, in some practices, that thesestandards cannot be violated without contradicting the practice itself,thereby undermining cooperation. Morality in this latter role acts toreinforce coordination and consequently encourage cooperation.9 All thiswork morality can do due to its perceived objectivity, universality, auster-ity, and binding force, acting as the shared background that sets the limitsfor the emergence of an authority structure.

Moral rules play an important role, too, in minimizing the free-riderproblem. The idea was defended in particular by Robert Nozick (1993),arguing that moral rules can help us overcome temptations and reassureothers that we will. Moral rules are less decisive in small-scale contextsbecause the proximity makes it easier for people to rely on one anotherdirectly, but in large-scale practices people have to rely on one another’scompliant behaviour, and morality will help to achieve this (see alsoHabermas 1999, 14). Further, from the internal point of view previouslyconsidered, moral rules are taken up not just because they appear correctbut because they are believed to be so. And this ability they owe in part totheir structure and function, in that our perceiving other people and theworld generally through the lens of values and symbolic meanings “putsus on the side” of those values (Nozick 1993, 30). This perception of moralrules makes possible an expanded range of interactions and cooperativeactivities (on this idea, see also Gauthier 1986).

We have thus embedded morality into law through this practice’stechnical element. But why should this be its primary connection? Indeed,we have at least two other options: Morality can be embedded into a legalpractice insofar as

• it is a set of moral goods that this practice seeks to achieve—itsteleological element; or

• morality forms part of the practice’s intentional element, meaning itsrule of recognition, thereby directly providing substantive reasons forcomplying with legal rules.

9 This functional approach allows us to articulate the meaning of moral concepts accordingto the different needs of different practices: The concepts involved in competitive play, theeconomy, and law may differ morally but are alike structurally and functionally.



The first option is aligned with Alasdair MacIntyre’s (1984, 191) viewthat a “virtue is an acquired human quality, the possession and exercise ofwhich tends to enable us to achieve those goods which are internal topractices and the lack of which effectively prevents us from achieving anysuch goods.” But this approach will not help us here for at least two relatedreasons. First, if we assume that any legal practice is aimed, if nothing else,at maintaining a unified rule system—in this lies its minimal teleologicalelement—then we have to show that this goal bears inherent moral valuewithin the practice, and this is far from obvious.10 Second, legal practicesso constructed embed moral content only insofar as their goals correspondto moral goods. But this means treating goods as moral primitives—whichin turn means that these goods may come into a legal practice just as likelyas they may not, and this makes for a weak and contingent relationbetween law and morality.

The second option looks more natural. If moral rules are instrumental tomaking cooperation effective, then moral constraints on the content of lawcan be embedded directly into the rule of recognition, which Colemanframes as an SCA. This second option is therefore substantially alignedwith Coleman’s conclusion, even though it looks much stronger because itassumes (as we argued) that morality cannot easily be dispensed with.However, cooperation cannot as such distinctively mark out legal practices.What instead makes law distinctive as a cooperative practice is that itsreliance on morality to support cooperation makes the practice stable insetting up and maintaining an authority structure: Morality supports thelaw’s authority structure understood as the law’s typical mode of achieve-ment (the technical element) by setting out necessary conditions failingwhich the road to the establishment of a stable authority structure wouldprove arbitrary.

We might better understand how morality works in this role by con-sidering a game-theoretical reading of the problem. We classically have a

10 Indeed, our insistence on the typical function of law, as well as our argument in favour ofa connection between law and morality, could give one to think that the view advocated hereis a kind of functionalist natural-law theory, along the same lines as Michael Moore (1992,2001). But, clearly, this is not the case. In fact, we do not support in this paper any cognitivistconception of morality: The arguments presented here are perfectly coherent with a conven-tionalist account of morality, and—as Moore himself has observed—natural-law theory isincompatible with a conventionalist stance (Moore 1992, 192). Then, too, one of the mainpoints of our thesis is its insistence on the typical mode by which law achieves its function,rather than on law’s typical function only: Morality, in our view, is not a component of thelaw’s end but rather acts in support of the law’s typical authority structure as the meansthrough which this end is achieved. Clearly, one could present a natural-law argument alongthese lines, e.g., by claiming that “the characteristic activity of the law makes it the case thatlaw that fails to serve as a rational standard for conduct, does not perform its characteristicactivity well, and is therefore defective or perhaps even not law at all” (Murphy 2005, 26). But,again, such a position would imply a cognitivist view of standards of conduct, a view thatwe do not espouse in this paper.



situation in which players have to choose among alternative courses ofaction—here among alternative authority structures. Each alternativecarries both a personal utility (based on considerations of self-interest) anda moral value, assessed by considering its ability to support cooperation.On a first reading of the problem, morality is viewed as an externality,which means that moral considerations are simply factored in as part of thepayoff expressing the personal gain obtained by choosing some authority.However, even when moral reasons so construed are strong andentrenched into the game, they will not necessarily help us minimize thefree-rider problem. In fact, benevolence will not suffice in this regard ifmorality is treated as an externality, a treatment that only works when thepayoffs for the players are roughly equal: When one player stands to gainmuch more than another, it is unreasonable for the former to expectaltruism from the latter, and this does nothing to allay the free-riderproblem (see, in general, Moreh 1994, 110ff.). Let us keep things simple andconsider only two players deciding to support or not a “just” authority. Let3 be the “cost” associated with strongly supporting the “just” authority,and 4 the (moral) satisfaction that each player can expect when the “just”authority is supported, regardless of who it is that actually chooses toprovide such support. The resulting matrix will look like this:

Support justauthority

Not supportjust authority

Support just authority 5, 5 1, 4

Not support just authority 4, 1 0, 0

Matrix 1

Suppose now that the “cost” borne for strongly supporting the “just”authority remains constant at 3, but that the corresponding (moral) satis-faction (regardless of who does the supporting) drops to 2. In this case, wewill have a matrix as follows:

Support justauthority

Not supportjust authority

Support just authority 1, 1 -1, 2

Not support just authority 2, -1 0, 0

Matrix 2

That is an instance of the Prisoner’s Dilemma, and the shift from Matrix 1to Matrix 2 exemplifies the free-rider problem.



So, treating morality as an externality (as something that simply revisespayoffs) does not always minimize free-riders. It therefore seems moreeffective to consider in a different way the role that morality can play inhelping to set up and maintain a stable authority structure in legalpractices: This is more likely to happen if people are “induced by socialcodes of behaviour to act as if they have different preferences from whatthey really have” (Sen 1973, 258; see Sen 1977 and Sugden 2000), in sucha way that they actually believe an authority structure to be morallycorrect (or at least not morally bad) rather than just treat such a structureas appearing to be correct. This amounts to the well-known thesis that wecan have more than one principle of rational choice. Sen (1994) insistedthat incorporating moral commitments into games does not require revis-ing payoffs but only changing the criteria for determining rational choicein a game. In this way—on the hypothesis that the conventional socialcode consists of moral rules that the participants treat as universal,austere, authority-independent, and part of an objective reality—the shiftfrom Matrix 1 to Matrix 2 does not necessarily require forsaking coop-erative attitudes (see, also, Nozick 1993, 50ff., 133ff.), and so there is noreason why morality should not play a decisive role in choosing anauthority structure.11

4. Conclusion

We have presented three basic features of a social practice—its teleological,technical, and intentional elements—pointing out that these also apply tothe practice of law as a shared cooperative activity. It is in particularthrough the technical element that morality supports cooperation in law: Itdoes so by backing up the law’s authority structure of law.

We observed that morality can be conventional but that its rules none-theless claim to be general, objective, and binding. This frames for agentsan internal point of view from which they have both a moral requirementto act in compliance with legal authority and a reason for doing so.Morality thus makes for stability, for it supports an authority structure thatcan be stable and can minimize the free-rider problem.

In enabling cooperation and a stable authority structure, morality worksin the background, such that moral reasons need not explicitly be invokedin making a claim to legal validity. In fact, a stable practice of law would

11 To be sure, in order for morality to be successful in this role, it must meet two basicrequirements: (i) The social code must serve as a minimal shared background of morality orthere must be a procedure for solving moral disagreements over which authority to choose;and (ii) morality should not be incompatible with any of the practice’s outcomes (theteleological element). We submit that these requirements are not too demanding, but this isa longer discussion than can be taken up here.



not even be possible without a minimum of moral commitment, and somorality is functiondlly connected with the practice of law.

(For all the authors)University of Bologna

CIRSFID and Law FacultyVia Zamboni, 22I-40126 Bologna

ItalyE-mail: [email protected];

[email protected];[email protected]; [email protected]

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