2 Some Claims About Law’s Claims

LUÍS DUARTE D’ALMEIDA AND JAMES EDWARDS

SOME CLAIMS ABOUT LAW’S CLAIMS

(Accepted 9 December 2013)

ABSTRACT. Our paper has three parts. In Part 1, we discuss John Gardner’s thesisthat the non-elliptical ascription of agency to law is a necessary and irreducible partof any adequate explanation of the activities of legal officials. We consider threeexplananda which might conceivably necessitate this ascription, and conclude thatnone in fact does so. In Part 2, we discuss two other theses of Gardner’s: (a) that itmakes no sense to ascribe to law the claim that there are legal obligations (rights,permissions, and so on), and (b) that law’s claim is the claim that there are moralobligations (rights, permissions, and so on). We take issue with Gardner’s argu-ments for (a), and suggest that (b) is unwarranted in the absence of an argumentthat law makes any claims at all. In Part 3, we briefly argue that, insofar as it issuesrequirements, there are certain claims that law cannot but make. We concludethat if Gardner is right that law’s claims are those of certain of its officials, it is law-making and not law-applying officials who make law’s claim.

I. MUST LAW BE PERSONIFIED?

Legal theorists often speak of what law claims. But they cannot bespeaking literally. For only persons can make claims, and law is not aperson. So perhaps they are speaking figuratively. Or perhaps theymean simply, if elliptically, to refer to the claims of legal officials. Isthis reason to abandon any mention of law’s claims? It is not. Per-sonification, metaphor, and ellipsis are helpful rhetorical devices.True, such devices may sometimes impair clarity. They may evencarry other philosophical costs. But do we incur such costs when wetalk of what law claims?

Neil MacCormick thought so. He criticised both Robert Alexy forsaying that law claims correctness, and Joseph Raz for saying thatlaw claims legitimate authority. MacCormick’s point was not merelythat their theses ‘can be stated more clearly’ as non-metaphorical

Law and Philosophy (2014) 33: 725–746 � Springer Science+Business Media Dordrecht 2014DOI 10.1007/s10982-013-9202-5

theses about the claims of legal officials.1 His point was that ‘thereare hidden implications about the character of law that lurk in themetaphor’ and that make it ‘unhelpful’ and indeed ‘misleading’ topersonify law.2 This is because whatever other claims legal officialsmay make in the course of their official activities, they also claim tobe acting in accordance with law – they purport to be acting ‘underthe law with a view to lawfully making new laws or to implementingand giving effect to laws’.3 Sometimes, of course, and in spite of theirbest intentions, officials may fail in this endeavour: they may fail tocomply with the law. That does not mean that they have not actedin their official capacity. It is no tautology to say, of an act performedby a legal official in that capacity, that it fully accords with the law.So there is an important distinction to be drawn between, on the onehand, official acts, as performed by legal officials in their officialcapacity, and, on the other hand, the law, with which such actspurport to comply. But this contrast becomes difficult to pin down ifthe acts performed by legal officials in their official capacity aremetaphorically attributed to law. It is hard to see how law could everact against (or despite) itself. We should therefore avoid personifyinglaw, and always be clear that only legal officials can strictly be said toclaim anything. Or so MacCormick suggests.

John Gardner holds a different view. He does not directly addressMacCormick’s argument. But he disagrees with its basic assumption.MacCormick’s argument, urging us not to personify law, supposesthat whether or not we speak in such terms is entirely a matter ofchoice. Gardner, on the contrary, thinks that we cannot but personifylaw. He agrees that ‘the claims of law are identical to certain claimsof its officials’, namely its law-applying officials.4 Yet he denies thattalk of law’s claims is elliptical for talk of the claims of those officials.For Gardner thinks that the non-elliptical ascription of agency to law– ‘to law itself’5 – is a necessary and irreducible part of any adequateexplanation of official activity. Here is his argument:

1 N. MacCormick, ‘Why Law Makes no Claims’, in G. Pavlakos (ed.), Law, Rights and Discourse(Oxford: Hart, 2007) 67.

2 Ibid., 59, 63.3 Ibid., 63.4 J. Gardner, ‘How Law Claims, What Law Claims’, in Law as a Leap of Faith (Oxford: Oxford

University Press, 2012) 131.5 Ibid., 132.

LUÍS DUARTE D’ALMEIDA AND JAMES EDWARDS726

The claims of law are identical to certain claims of its officials. And these claimsmust be non-elliptically ascribed to law … because the only way to unpack theidea that they are claims made by legal officials is as follows. Some people (be theydressed in robes or pyjamas) make these claims on behalf of law, and making theseclaims on behalf of law is part of what makes them law-applying officials. It is anirreducible part of this explanation that the claims in question are made on behalfof law. One cannot omit, from any adequate explanation of what a law-applyingofficial is, the fact that law-applying officials serve as law’s representatives orspokespeople, identified by law to do law’s bidding. So one cannot explain thenature of the action performed by the official without ascribing agency, albeit non-autonomous agency, to law itself.6

This is not as clear as it might be. Unless we non-elliptically ascribeagency to law itself, Gardner claims, we won’t be able to explain –what, exactly? Is it that we won’t be able to explain that certainclaims are ‘claims made by legal officials’, as he puts it at thebeginning of this passage? Or is it, as we read a couple of sentencesafter that, that we won’t even be able to explain ‘what a law-applyingofficial is’? Or is it instead that we won’t be able to ‘explain thenature of the action performed by the official’, as the followingsentence declares? Each of these formulations seems to describe adifferent explanandum, although Gardner gives no indication that hemeans to point out not one but three ideas that cannot be adequatelyexplained without ascribing agency to law itself. In any case, is heright with regard to at least one of his three explananda?

Take Gardner’s second explanandum first. He thinks that ‘theclaims of law are identical to certain claims of its officials’, and it islaw-applying officials he specifically has in mind.7 Making suchclaims, he seems to be suggesting, is not just something law-applyingofficials do; it is ‘part of what makes them law-applying officials’.Taken literally, this would imply that there cannot be law-applyingofficials who make no claims on behalf of law. Actually makingclaims on behalf of law would be a necessary condition of being alaw-applying official. But we doubt that this is what Gardner reallymeans. Nowhere does he speak as someone who is offering such anovel definition of what a law-applying official is: there is no hintthat he is appealing to anything other than his readers’ ordinarynotion of a law-applying official. And the definition on offer would

6 Ibid., 131f.7 ‘Law makes claims only insofar as law-applying officials make those very same claims at the very

same time and place’ (emphasis added): see ibid., 131.

SOME CLAIMS ABOUT LAW’S CLAIMS 727

have surprising implications. That definition would mean, forexample, that a judge appointed to the bench last year but who hasnot yet heard her first case is not really a law-applying official, be-cause she has made no claims on law’s behalf. It would likewiseimply that in a legal system in which there have as yet been noadjudicated legal disputes, there are no law-applying officials at all.

If this really is what Gardner means to say, then his assertion thatmaking claims on behalf of law is ‘part of what makes’ one a law-applying official is indeed true – but true only by stipulation ordefinitional fiat, with the consequence that his argument does noteven get off the ground. We thus think his remarks must beunderstood with our common concept of a law-applying official inmind. But then it must be possible to explain what a legal official iswithout ascribing any claim to law itself: the identification of anyclaim as being made by a law-applying official presupposes that law-applying officials can be identified without taking into account anyclaims they actually make.

Now one plausible way of thinking about legal officials is in termsof normative powers. A law-applying official, one might say, issomeone who is legally empowered to perform acts of law-appli-cation of a certain type. That they are so empowered is a necessarycondition of the actual, successful performance of any token act ofthat type. But that means that the actual performance of any such actcannot itself be a necessary condition of being empowered to per-form it. And, of course, the fact that one is empowered to performcertain acts of law-application is only a necessary and not a sufficientcondition of one’s actual, successful performance, in one’s capacity asa law-applying official, of any such act: the fact that one isempowered to do something does not mean that one actually doesanything. One reason for this is that the acts one is empowered toperform may be acts that one is empowered to perform only undercertain conditions. A criminal judge is empowered to convict thieves,for example, only if they have been duly charged and brought totrial. If no one is ever charged with theft, the judge will never haveoccasion to exercise the power to convict thieves. So one can be alaw-applying official and never have occasion to apply the law. Itfollows that one can be a law-applying official and never actually doanything in one’s capacity as a law-applying official. And that means


one can be a law-applying official and never get to make any claimsabout law at all. But if law can be said to make claims only insofar asits law-applying officials make claims, then if there are no claimsactually being made by those officials – and surely whether or notany such claims are actually made is an empirical, not a conceptualquestion – there are no claims being made by law itself. So it cannotbe true that law necessarily makes any moral claim.8 Nor can it betrue that unless we ascribe any claims to law itself, we are unable toidentify law-applying officials, or explain what a law-applying officialis.

Gardner might seek to defend a slightly weaker thesis, namelythat if and when legal officials make certain moral claims about law,then such claims must necessarily be non-elliptically ascribed to lawitself. Can the above-quoted passage be used to reconstruct, onGardner’s behalf, an argument for this thesis? Perhaps. Perhaps whatGardner means is not really that ‘making … claims on behalf of law ispart of what makes [certain people] law-applying officials’.9 Perhapsall he means is that being empowered to make certain claims on behalfof law is part of what makes certain people law-applying officials. Soperhaps the relevant aspect of his argument is the thought that law-applying officials are, as he puts it, ‘law’s representatives orspokespeople, identified by law to do law’s bidding’. It still does notimmediately follow that we must ascribe any token claims to law.But Gardner might say that two important conclusions do follow.First, it immediately follows that we must personify law. For the factthat law-applying officials are empowered to make certain claims onbehalf of law means that we must ascribe to law the capacity toclaim: not yet (nor necessarily) actual ‘agency’, but at any rate the

8 Might Gardner bite the bullet and maintain that there actually is no law until law-applying officialsstart making claims? That cannot be his view. He argues elsewhere that ‘a legal system might still exist’in a ‘society of angels’ in which ‘the ex hypothesi perfect population … will be guided by the ex hypothesiperfect laws and policies of their ex hypothesi perfect government’: see J. Gardner, ‘Law’s Aims in Law’sEmpire’, in S. Hershovitz (ed.), Exploring Law’s Empire. The Jurisprudence of Ronald Dworkin (Oxford:Oxford University Press, 2006) 208. His argument in that piece is directed against the thought that law isnecessarily coercive. Gardner argues that in a society of angels, though ‘there is no coercion’, ‘there willstill be co-ordination problems to which angelic law may provide the best solutions … So angelic lawmay still exist’ (ibid., 208f). Angels, however, would presumably have no need for law-applying officials;not, at least, if we make them epistemically as well as morally perfect. Yet this would still leave themwith co-ordination problems to solve, and therefore (if Gardner’s argument is correct) with law.Gardner cannot (without self-contradiction) be simultaneously committed to this argument and to theclaim that necessarily law makes claims through law-applying officials. (We are grateful to an anony-mous reviewer for reminding us of Gardner’s views in this other essay.)

9 Emphasis added: see passage quoted to n. 6 above.


capacity to act. And to do that is still to personify law. Second, andmore importantly, it follows, Gardner might hold, that certain claimsmade on behalf of the law by law-applying officials in their officialcapacity must also – if and when officials do make them – be ascribedto law itself.

Why should one accept this second point? The answer cannotsimply be that the claims in question are made by law-applyingofficials in their official capacity; for Gardner himself acknowledgesthat not all claims made by law-applying officials in their officialcapacity are claims that could plausibly be ascribed to law itself: anerror about the existence of legal rights or obligations, for example,can only be ascribed to the official who makes it.10 The answer alsocannot simply be that they are claims made on behalf of law. Afterall, anyone, including non-officials, can make claims on behalf of law.And just as the mere fact that we are now reconstructing an argu-ment on behalf of Gardner is no decisive reason for that argument tobe ascribed to Gardner himself as his argument, the mere fact thatsomeone makes a given claim on behalf of the law is no decisivereason for that claim to be ascribed to law itself as its claim. Butwould things not be different if Gardner had empowered us to makearguments on his behalf – if he had made us his philosophical rep-resentatives or spokespeople, as it were? Would the arguments madeby us on Gardner’s behalf not then be attributable to him? Isn’t thatjust what it means for someone’s representative to act on behalf ofwhomever she represents? Perhaps this is the thought animatingGardner’s thesis that we must ascribe agency to law: if you aresomeone’s representative, then the actions you perform in thatcapacity, the actions you perform on behalf of the person you rep-resent, will be attributed to that person as her own.

It is possible, then, that this is how Gardner’s argument aboutlaw’s claims is to be reconstructed: certain claims made by law-applying officials are to be ascribed to law itself – if and when theyare made – because they are made (a) on behalf of law (b) by peopleempowered by law to make claims on its behalf. If this is theargument, what exactly would the explanandum be whose expla-nation, according to Gardner, cannot but involve the ascription ofagency to law? Not what we called Gardner’s ‘first’ explanandum,

10 J. Gardner, ‘How Law Claims, What Law Claims’ (n. 4) 133.


which was that certain claims are ‘claims made by legal officials’. Toexplain that certain claims on behalf of law are made by legal officialsone needs only to be able to explain, first, what it is to make a claimon behalf of law (which is something that non-officials can also do),and, second, what it is for someone to be a legal official. Neitherexplanation requires that we ascribe agency to law. So perhaps it isGardner’s third explanandum that is needed if our reconstruction ofGardner’s argument is to go through: perhaps what we really cannotexplain without ascribing agency to law is ‘the nature of the actionperformed by the official’ when that official makes claims on behalfof law in his or her official capacity. The point would not be that ifwe refuse to ascribe agency to law we cannot explain the nature ofclaims made on behalf of law. The point would rather be that wecannot explain the nature of claims made on behalf of law by peoplelegally empowered to make claims on behalf of law unless such claims areascribed to law itself. And that is why law must be personified.

What are we to make of this argument? Does it establish that wemust ascribe agency to law? We think not. It is not at all clear thatwhen A empowers B to act on A’s behalf, the actions that B doesperform on A’s behalf are indeed – as a matter of conceptualnecessity, which would have to be Gardner’s point – to be ascribedto A as her own. A writer who wins a literary prize asks a friend toattend the ceremony for her: to collect the award and to deliver aspeech on her behalf. The friend does all this; does it follow that thefriend’s actions are to be ascribed to the writer? Are we to say thatthe writer herself attended the ceremony, collected the award, gavethe speech? It seems that we are not. It could be that when he speaksof officials as law’s ‘representatives’ Gardner has a less informalnotion of a ‘representative’ in mind. But the same point seems tohold even in situations in which someone is given power of attorneyto represent someone else. The representative or agent will thenhave the power, by acting on behalf of the principal, to bring aboutchanges in the latter’s normative positions – in her rights, duties,powers, liabilities, and so on. But although the normative conse-quences of the representative’s actions will indeed be attributed, in asense, to the principal, it will still not be the case that the repre-sentative’s actions are themselves necessarily to be ascribed to theprincipal as her own. The same goes for law. That law empowers


officials to make claims on its behalf does not imply that those claimsshould be ascribed to law as its claims. Things may be different withregard to the normative consequences of official acts; we mightaccept that those consequences, or at least some of them, are to beascribed to law itself. We might also accept that one cannot ade-quately explain the nature of legal officials’ actions without ascribingthe normative consequences of those actions to law. But it does notfollow that we are unable to explain those same actions withoutascribing officials’ claims to law itself. We need not – and if Mac-Cormick is correct, we should not – take this additional step.

Could Gardner not still insist that – even if a representative’sactions are after all not necessarily to be ascribed to the principal – itis undeniable at any rate that the principal does perform an action,namely that of appointing or empowering a representative to act onher behalf? And if so, could Gardner not therefore at least maintain,by the same token, that insofar as the law appoints (or ‘identifies’,which is the verb Gardner uses) law-applying officials as its repre-sentatives, then the law does act – and that this vindicates the thesisthat we cannot understand what it means for law-applying officialsto be and to act qua law’s representatives unless we personify law?The answer, we fear, is once again negative. For the very notion thatlaw-applying officials are law’s ‘representatives’, ‘identified by law todo law’s bidding’, is a metaphorical notion that relies on a personi-fication of law. Gardner’s argument, therefore, thus understood, isquestion-begging. In order to accept his crucial premise – namely,that we need to explain the idea that law-applying officials are law’srepresentatives – one must have already granted the conclusion –namely, that law must be personified.

So it seems Gardner has given us no reason to accept that wemust personify law.11 And this in turn means that the questionwhether we have reason nonetheless to ascribe to law itself, per-

11 Or at any rate that we must ascribe agency to law: Gardner writes that ‘law’s action of claimingmoral authority is not autonomous, even logically autonomous, of the actions of law-applying officials’,but informs us that he tends towards the view that ‘persons are agents whose intentional agency is atleast logically autonomous, so that ascribing non-autonomous agency to law is not a personification oflaw at all’ (ibid., 131f). So in his view while we cannot but ascribe agency to law, it may be (dependingon one’s account of which agents count as persons) that we need not personify it. We do not thinkanything turns on this: Gardner’s view of personhood is itself expressed only tentatively, and he ishappy to describe his own argument as showing that it is ‘with no more than the barest of personi-fications’ that law makes claims (ibid., 132). In any case his position remains that agency cannot but beascribed to law, and this is all we need for the purposes of our arguments in the present paper.


sonifying it, the claims and actions of legal officials – the question towhich, as we saw, MacCormick offered a negative answer – is indeeda live one. Recall that MacCormick’s main point was directed, notagainst metaphor and personification in general, but specificallyagainst the personification of law. His argument – that ascribing theactions of legal officials to ‘law itself’ misleadingly suggests thatofficial action cannot fail to comply with the law – does not countagainst ascribing the actions of legal officials to the state rather thanto law.12 Nevertheless, MacCormick also put forth a more generalpoint: ceteris paribus, it is preferable for legal theorists to avoid per-sonification and metaphor, and speak more clearly and directly of theactions of legal officials. We agree. To say this is by no means toreject the substance of either Alexy’s thesis that law claims moralcorrectness, or of Raz’s thesis that law claims legitimate authority. Itis simply to point out that, if indeed such theses are best understood– as both Gardner and MacCormick seem to think – as theses aboutcertain claims made by legal officials, then there is nothing aboutsuch theses that turns essentially on the personification of law. Forthen the thesis that law makes a moral claim can simply be restatedas a thesis about the claims of legal officials, without any loss insoundness or philosophical importance, and with a gain in clarity. Itremains to be seen, of course, whether or not such theses are sound.

II. MAY WE PLAUSIBLY ASCRIBE TO LAW ITSELFTHE CLAIMS OF LAW-APPLYING OFFICIALS?

Gardner agrees with Raz and Alexy that ‘law makes a moral claim’.13

But he thinks the way this thesis has sometimes been presented mayhave led to the spread of doubts about its soundness. So he setshimself the task of allaying those doubts by clarifying what is atstake. We do not think he succeeds. This is not because we reject thethesis that law makes a moral claim. In fact, we do not find the thesisthat law makes a claim of this sort all that perplexing (for reasons webriefly explain in Section 3). It is what Gardner has to say about itthat puzzles us.

12 Unless one thinks, as Kelsen did, that there is no difference between the state and the law: seeMacCormick, ‘Why Law Makes no Claims’ (n. 1) 62f.

13 J. Gardner, ‘How Law Claims, What Law Claims’ (n. 4) 123.


We have seen that Gardner believes that law can make claimsonly insofar as its law-applying officials make claims. What he holds,as we saw, is that some of these claims must be ascribed to law.Some, not all: the claims that law makes – the claims we are justifiedin ascribing to law itself – and particularly law’s claim to moralauthority, form, according to Gardner, a subset of the set of claimsmade by legal officials in their official capacity. So Gardner seeks tospecify this subset. He seeks, that is, to provide a criterion by whichto distinguish (a) those claims made by legal officials that must beregarded as law’s own claims from (b) those claims made by legalofficials which ‘it makes no sense’,14 as he puts it, to ascribe to law.

Does our conclusion in Section 1 not entail that no such criterioncan be given? We have indeed argued that there are no official claimsthat must be ascribed to law as law’s own. But we have not arguedthat no official claims may plausibly be ascribed to law as law’s own.Nor have we suggested that there cannot be official claims which it isnot plausible – which ‘it makes no sense’ – to ascribe to law. Soalthough the broader point Gardner is trying to make seems to usuntenable, a criterion like the one he seeks to identify would stillallow us to distinguish between official claims that may and officialclaims that may not plausibly be ascribed to law as its own. If hesucceeds in providing such a criterion, in other words, Gardner willhave conclusively established a point only slightly weaker (if oneagrees that ‘must’ implies ‘may’) than the one he is trying toestablish. We think he fails: but the issue must be argued on itsmerits.

What claims, then, may plausibly be ascribed to law – ‘Whatclaims, if any’, as Gardner phrases the question, ‘does law indeedmake?’15 ‘The place to begin’, he thinks, ‘is with the language thatlaw-applying officials use’16:

In explaining the law, they [law-applying officials] cannot but use the language ofobligations, rights, permissions, powers, liabilities, and so on. What they therebyclaim – and they cannot say it without claiming it – is that the law imposesobligations, creates rights, grants permissions, confers powers, gives rise toliabilities, and so on. The question is, what do these claims amount to?17

14 Ibid.15 Ibid., 132.16 Ibid.17 Ibid.


One natural answer might be, as Gardner remarks, that ‘the fullnecessary extent’ of these claims is that ‘there are legal obligations,legal rights, legal permissions, legal powers, legal liabilities, and soon’.18 But Gardner maintains that this ‘cannot be law’s claim’; ‘itmakes no sense’, he says, to attribute claims of this sort to law.19

Here is his argument in full:

[A] legal obligation or right is none other than an obligation or right that existsaccording to law. And an obligation or right that exists according to law is noneother than an obligation or right, the existence of which law claims. So the claimthat there is a legal obligation or right – whether made by a law-applying official orby anyone else – is a second-order claim, a claim about what law claims. Now it istrue, of course, that law could make a second-order claim about its own claims.But not this one. For … a claim has to be capable of being true or false. It is not aclaim unless there is logical space for its falsity. And it makes no sense to attributeto law a false claim about these legal obligations and rights, for there is no criterionof legal truth and falsity that is independent of law. So an error about, and hence aclaim about, what legal rights and obligations there are, can only be attributed to aparticular law-applying official, not to law itself.20

This argument, we will argue, has some odd implications. Because itis not easy to follow, however, let us first try to unpack it with care.To begin, we should be clearer about the sort of claim that Gardneris discussing in this passage. He refers to such claims, we saw, asclaims that ‘there are legal obligations, legal rights, legal permissions,legal powers, legal liabilities, and so on’. This objectifying language isno accident. Gardner thinks that it ‘it is certainly true that there aresuch things’ as legal obligations, legal rights, and so on, and that law-applying officials ‘routinely’ claim ‘their existence’.21 In any case, hecan’t mean that the phrase ‘there are [or there exist] legal obligations’(and so on: for simplicity, we concentrate on obligations) is theliteral, oratione recta rendition of the kind of claim here at stake.Because Gardner has in mind claims made by officials in the courseof applying the law, we assume he has in mind claims of thefollowing form (where ‘X’ refers to some person, and ‘u’ to someaction):

18 Ibid.19 Ibid., 132f.20 Ibid., 133.21 Ibid., 132 (emphasis added).


(1) X has a legal obligation to u.

Now Gardner’s first premise is that ‘A legal obligation … is noneother than an obligation … that exists according to law’. So he thinksthat (1) is the same as

(2) According to law, X has an obligation to u.

He goes on: ‘[a]nd an obligation … that exists according to law isnone other than an obligation … the existence of which the lawclaims’.22 So he takes (2) to be the same as

(3) Law claims that X has an obligation to u.

It is on the basis of this equation of (1), (2), and (3) that Gardner saysthat a ‘claim that there is a legal obligation’ – that is, a claim of type(1) – is really a ‘second-order claim, a claim about what law claims’ –that is, a claim of type (3).

Now Gardner’s thesis is that it ‘makes no sense’ to ascribe a claimlike (3) – and thus a claim like (1) – to law itself. And he seems to usto mean his argument to be a reductio of sorts. Here is how it mightbe reconstructed:

(A) Suppose that claims like (3), as made by law-applying officials, areindeed to be ascribed to law itself as its own claims.

(B) It follows that no claim like (3), whatever its actual content, as made bylaw-applying officials, could ever possibly be false: there would be no‘logical space for its falsity’.23

(C) But a claim like (3) ‘has to be capable of being true or false’.24

(D) So the conclusion in (B) must be false.(E) Therefore, our initial supposition – the one in (A) – must be retracted.

Is the argument sound? Step (B) is not immediately transparent. Tosupport it Gardner says only that ‘there is no criterion of legal truthand falsity that is independent of law’.25 But the thought behind itseems to be that no-one – no claimant – can claim that she claims pwithout thereby necessarily claiming p. (If in discussion of our paperwe were to make the following claim – ‘we claim that the arguments

22 See also ibid., 139: ‘A legal power or obligation or right is no more and no less than what the lawclaims to be a power or obligation or right’.

23 Ibid., 133.24 Ibid.25 Ibid.


in our paper are sound’ – we would necessarily also be claiming that‘the arguments in our paper are sound’.) So any ascription to law of aclaim of type (3) – any ascription to law of the claim that it claims thatX has an obligation to u – would also necessarily be an ascription tolaw of the claim referred to in (3): the claim that X has an obligation tou. In short: law could not make a claim like (3) without simulta-neously making that claim true. But we do commonly think, asGardner says – this is step (C) – that claims like (3) are capable ofbeing false.26 So we have to conclude that claims like (3) cannot bethe sort of claims that it ‘makes sense’ to attribute to law.

If indeed this is Gardner’s argument, then one worry is that – inthe context of Gardner’s own views about how law claims – it provestoo much. It does not simply prove that law cannot make claims like(3). It proves that law-applying officials cannot make claims like (3)either. Why? To make a claim like (3) is to claim that law claims thatX has an obligation to u. So a claim like (3) is true, it seems, if lawdoes make the claim that X has an obligation to u. But law,remember, is not a person – which is precisely why Gardner holds,as we saw, that ‘law makes claims only insofar as law-applyingofficials make those very same claims at the very same time andplace’.27 So the claims referred to in claims like (3) must themselves beclaims made by law-applying officials. By Gardner’s own lights, then,it seems that (3) is the same as

(4) Law-applying officials claim that X has an obligation to u.

Yet claims like (3) – and therefore claims like (4) as well – arethemselves claims made by law-applying officials. But then how couldclaims like (4) ever possibly be false? Law-applying officials would beclaiming, it seems, that they claim that X has an obligation to u. AndGardner’s point, as we understand it, is that anyone who claims thatshe claims that p is thereby necessarily claiming p. So his argumentestablishes, not merely that there is no ‘logical space’ for a claim like(3) to be false if we think of it as a claim made by law itself, but alsothat there is no ‘logical space’ for a claim like (3) to be false if we

26 Something like this, we suppose, must be the thought behind Gardner’s step (C): a thoughtspecifically about claims like (3) rather than about the general concept of a claim; for, taken literally,Gardner’s contention that nothing is ‘a claim unless there is logical space for its falsity’ (ibid., 133) wouldimplausibly imply that no logical truth can ever be claimed. See also n. 32 below.

27 Ibid., 131.


think of it as a claim made by law-applying officials. Hence if Gardner’sargument proves that it ‘makes no sense’ to ascribe claims like (3) tolaw itself, it must also prove that it ‘makes no sense’ to ascribe claimslike (3) to law-applying officials. And because (3) is for him really thesame as (1), it must also make no sense to ascribe claims like (1) tothose same officials.

There are, of course, several ways of replying to this (partlytongue-in-cheek) rejoinder of ours. After all, it might be pointed out,claims made by law-applying officials are particular events made atsome point t in time. So some official may make, at t1, the claim thatX has an obligation to u, and another (or the same) official may thenmake, at t2, the claim that a law-applying official claimed that X has anobligation to u. The moment we realise that claims about whatofficials claim must be claims about the past – claims about whatofficials have claimed – we see that there is plenty of ‘logical space’for their falsity after all. But then why can’t the same line of rea-soning apply to claims putatively made by law itself? Why can’t lawclaim at t1 that X has an obligation to u, and then, at t2, make a claimlike (3) about what it has claimed at t1? Remember that for Gardner,law makes claims ‘only insofar as law-applying officials make thosevery same claims at the very same time and place’.28 If Judge A claims in1993 that victims of a breach of contract have an obligation tomitigate their loss, Judge B may make claims in 2013 about thoseclaims of Judge A, and Judge B’s claims may be false. Judge B mayeven claim that Judge A claimed that no obligation to mitigate exists.Why then could one not also sensibly say that law (through Judge A)claimed in 1993 that the obligation to mitigate exists, and that law(through Judge B) claims in 2013 that it claimed in 1993 that there isno such obligation? Of course, law’s 2013 claim would have to becapable of being false. But we see no reason to think it could not be.Its falsity is perfectly consistent with Gardner’s premise that ‘there isno criterion of legal truth and falsity that is independent of law’:what makes the 2013 claim false is the fact that, ex hypothesi, lawitself did not make certain claims in a certain time and place. SoGardner’s argument that it ‘makes no sense’ to ascribe claims like (3)to law itself is, it seems, unsound: step (B) of his reductio is unwar-ranted.

28 Ibid. (emphasis added).


In any case, this is not the aspect of Gardner’s argument that wefind most puzzling. What we find most puzzling is his equation of(1), (2), and (3). To see why, contrast a claim of type (1) with the sortof claim – call it ‘(5)’ – that is referred to in a claim of type (3):

(1) X has a legal obligation to u.(5) X has a [non-legal] obligation to u.

Claims (1) and (5) are structurally similar. The latter is a claim abouta non-legal obligation, a claim about an obligation which is notproperly called ‘legal’. Such a claim will be true, presumably, if thecorresponding non-legal obligation to u exists. But can we saysomething similar about claim (1)? Can we say that claim (1) is abouta ‘legal obligation’, and that it will be true if the corresponding legalobligation exists? This is indeed the sort of thing that Gardner wantsto be able to say. He maintains, as we have seen, that ‘it is certainlytrue that there are such things’ as legal obligations. Yet his ownargument implies otherwise. His argument implies that, irrespectiveof how it may be phrased, claim (1) is not a claim about somethingcalled a ‘legal obligation’. It is, in fact, not a claim about any sort ofobligation at all. For claim (1) is equivalent to claim (3), and claim(3), remember, is a claim about a claim; it is, in Gardner’s ownwords, a ‘second-order’ claim: a report that law makes claim (5). Tosay that X has a legal obligation to u is thus merely to say that lawmakes the claim that X has a non-legal obligation to u.

Now Gardner seems to think that this conclusion is still compatiblewith the meaningful assertion that there ‘are’ or ‘exist’ legal obligationsin the same sense in which we can say that there ‘are’ or ‘exist’ non-legal obligations. He thinks that the contrast between the notion of a‘legal obligation’, as it occurs in claim (1), and the notion of a (non-legal) obligation as it occurs in claim (5), can be drawn as follows:

There are obligations and rights, such as legal obligations and rights, or the obli-gations and rights accorded by tradition or convention, which are merely claimed orsupposed obligations and rights. And then there are obligations and rights that arenot merely claimed or supposed. They are the very ones that the claimed orsupposed are claimed or supposed to be.29

But what is a ‘merely claimed or supposed’ obligation? Imagine that wenow claim that there is a penguin in the room. If the claim is true, there

29 Ibid., 134.


will be a penguin in the room. This penguin, we can agree, is not a merelyclaimed or supposed penguin. It is an actual penguin; it is the penguin ourclaim is about. But what if the claim that there is a penguin in the room isfalse? Does the fact that we made the claim mean that there is now amerely claimed or supposed penguin hopping around? Would we say,paraphrasing Gardner, that penguins come in two ‘groups’30 – that‘there are penguins which are merely claimed or supposed, and thenthere are penguins which are not merely claimed or supposed’? Ofcourse not. A merely claimed penguin is no more a penguin than amerely claimed obligation is an obligation. Nor is the claim that someoneclaimed that there is a penguin in the room a claim about a mysterious entitycalled a ‘merely claimed penguin’. It is simply a second-order claimabout what someone has in fact claimed. So if indeed, as Gardner thinks,a claim like (1) – on the face of it, a claim about something called a ‘legalobligation’ that X is said to have – is really the same as a claim like (3) – asecond-order claim that law claims that X has an obligation, where‘obligation’ can only mean a non-legal obligation – it seems to follow thatthere really is no such thing as a legal obligation.31

What we find odd about Gardner’s equation of (1) and (3) is notthat it leads to this conclusion. Our objection is not that there reallyare such entities as ‘legal obligations’. What we find odd about theequation is that it seems to depict the content of the law as a set ofclaims. But this cannot be right. We agree with Gardner that law-applying officials do ‘routinely’ make claims like (1). We may alsoagree that such claims can be true or false – or rather, to be moreprecise, that to claim something is to perform a descriptive speech actof some sort.32 And we might even agree that those claims can beintelligibly cast as claims about something that law ‘does’. Yet whenwe say that someone ‘has a legal obligation to u’ we are notdescribing or reporting any claim that law makes. We are saying, not

30 Ibid.31 Might Gardner reply that legal obligations just are claims made by law-applying officials about

non-legal obligations? On that view, X would have a legal obligation to u when and because law-applying officials claim that X has a non-legal obligation to u. One reason this view is untenable is that itwould have to dismiss – implausibly – as self-contradictory judicial pronouncements of the followingsort: ‘While X is morally obligated to u, he has no legal obligation to do so’.

32 This seems to us to be what Gardner actually means when he states that claims are the sort ofthing that can be true or false. The term ‘claim’ can be used (and is indeed indistinctly used by Gardner)to refer both to the descriptive speech act of claiming something, and to the content of such an act. Theact itself is not truth-apt; it is only the sentence or proposition that forms the content of that act that canstrictly speaking be said to be true or false.


that law claims that X has an obligation to u, but that law requires Xto u. And there is a big difference between requiring someone to u,and claiming that someone has an obligation to u. While to claimsomething is to perform a descriptive speech act, requirements areprescriptive rather than descriptive speech acts.

We return to this point in the next section. Before doing so,however, we should register a further worry about the structure ofGardner’s argument. Remember the question that Gardner had an-nounced he would be addressing: ‘What claims, if any, does lawindeed make?’33 Our worry is simple: so far we have been given noargument to support the view that there are any.

Note that Gardner’s question is actually a combination of twoquestions: (Q1) Does law make any claims? (Q2) If it does, whatclaims does law make? Recall also that for Gardner, law’s claims – ifthere are any – must be claims made by law-applying officials, whoroutinely claim that law ‘imposes obligations, creates rights’, and soon. ‘What’, Gardner asks, ‘do these claims amount to?’ He considers,as we have noted, the view that ‘the full necessary extent’ of suchclaims ‘is that there are legal obligations, legal rights’, and so on. Hethen argues, as we also saw, that claims of this sort cannot be law’sclaims. This argument helps us answer (Q2), by establishing thatsome candidate claims cannot be law’s own. But it does nothing toshow that we should answer (Q1) in the affirmative. To do this,Gardner would need to argue against the view – just mentioned –that ‘the full necessary extent’ of the claims of law-applying officialsis indeed that ‘there are legal obligations, legal rights, and so on’. Whydoes he need to argue that this view is false? Because if this view istrue, then by his own terms the answer to the question ‘Whatclaims, if any, does law indeed make?’ is – ‘none’.

Oddly enough, Gardner seems never to offer this crucial piece ofargument. Immediately after making his point that ‘it makes nosense’ to ascribe to law claims that there are legal obligations, legalrights, and so on, he says this:

It is against this background that the proposal emerges that law’s own claim is amoral one: that when, according to law, there are obligations and rights and so on,law’s claim is that these are moral obligations and rights and so on.34

33 See above, text to note 15.34 J. Gardner, ‘How Law Claims, What Law Claims’ (n. 4) 133.


Here we find ourselves already discussing whether law’s own claimis indeed a moral one. But we were still waiting to be persuaded, tobegin with, that law does make any claim at all.

III. LEGAL REQUIREMENTS AND LAW’S CLAIM TOLEGITIMATE AUTHORITY

There is a difference, we said, between requiring someone to u andclaiming that someone has an obligation to u. Both requirements andclaims – understood as kinds of acts – take propositional contentswhich can be said to be true or false. But while to require someone tou is to issue a prescription of some sort – it is not to describeanything, but rather to direct that X does u – to claim something is ineffect descriptively to report that such-and-such is the case. This is soeven if one’s claim is that ‘X has an obligation to u’, or that ‘Yrequires X to u’ – one will then be describing or reporting a require-ment directed at X by Y.

Our point at the end of the previous section was that law requiresus to perform or abstain from performing certain actions – just as itallows us to do certain things, enables us to do some others, and soon. None of this requiring, allowing, or enabling can be described asthe making of claims of any sort. So pace Gardner, law is not plausiblyseen as a set of claims.

This is not to say that law cannot or does not make claims. In ourprevious sections we doubted Gardner’s arguments to the conclusionthat certain claims may, or even must, be ascribed to law. But we didnot doubt the conclusion itself. And there is reason to think that,insofar as law issues requirements, there are certain claims that itcannot but make. This is because in requiring someone else to u, aspeaker S implicitly claims that the addressee has reason to do as Srequires. There are ways in which this thought could be made moreprecise; but it seems to us to capture one essential aspect of thenotion of a requirement. And if the thought is correct, then law,since it does require its subjects to behave in certain ways, cannotbut make the corresponding claim that its subjects have reason to doas it requires.

In fact, it is with this sort of claim – law’s claim that its subjectshave reason to do as it requires – that contemporary discussions ofthe idea that law claims legitimate authority (as Joseph Raz puts it)


seem to us to be concerned.35 Now this point – that law’s claim tolegitimate authority is a claim that necessarily accompanies therequirements that law directs at its subjects – is not necessarilyinconsistent with Gardner’s thesis that law can make claims onlyinsofar as legal officials make ‘those very same claims at the verysame time and place’. But if the claims of law really are the claims ofits officials, it is with the claims of officials who issue legal require-ments that one ought to be concerned. And this means that oneshould be looking, not, as Gardner supposes, to the claims of law-applying officials, but to those of law-making officials instead. Oneshould be looking, that is, to the claims of those officials who makeup legislatures, governments, constituent assemblies, and, yes,courts: one should be looking to the claims of judges when theymake law, be it by issuing particular legal norms (such as when ajudge issues a ruling requiring X to pay £50 in damages to Y) or(when so empowered) by changing or creating legal rules. So ifGardner is right that the claims of law must be the claims of certainlegal officials, he must be wrong that ‘law makes claims only insofaras law-applying officials make those very same claims at the verysame time and place’.36

It is worth noting that neither Raz nor Alexy – whose commonthesis that ‘law makes a moral claim’37 Gardner means to defend –seem to think that ‘law makes claims only insofar as law-applyingofficials make those very same claims’. The two examples given byAlexy that Gardner himself discusses concern the exercise of con-stituent authority (the example ‘of a constitutional provisionaccording to which ‘‘X is a sovereign, federal, and unjust republic’’’)and the exercise of judicial law-making power (the example of ‘ajudge who rules: ‘The accused is sentenced to life imprisonment,which is an incorrect interpretation of prevailing law’’).38 Likewise apassage by Raz that Gardner quotes seems to us to lend no supportto the reading that ‘law’s supposed claim to moral authority’ is a

35 See, for example, P. Soper, ‘Legal Theory and the Claim of Authority’ (1989) 18 Philosophy andPublic Affairs 215ff; K. E. Himma, ‘Law’s Claim of Legitimate Authority’, in J. Coleman (ed.), Hart’sPostscript (Oxford: Oxford University Press, 2001) 275ff; S. Perry, ‘Law and Obligation’ (2005) 50 TheAmerican Journal of Jurisprudence 264ff; L. Green, ‘Positivism and the Inseparability of Law and Morals’(2008) 83 New York University Law Review 1048f; or A. Marmor, Philosophy of Law (Princeton and Oxford:Princeton University Press, 2010) 69ff.

36 J. Gardner, ‘How Law Claims, What Law Claims’ (n. 4) 131.37 Ibid., 139.38 Ibid. (emphasis added).


claim made by – a claim to be put, as Gardner has it, ‘in the mouth of’– law-applying officials:

‘The claims that law makes for itself are evident from the language it adoptsand from the opinions expressed by its spokesmen … The law’s claim to authorityis manifested by the fact that legal institutions are officially designated as‘‘authorities’’, by the fact that they regard themselves as having the right to imposeobligations on their subjects, by their claims that their subjects owe them allegiance, andthat their subjects ought to obey the law as it requires to be obeyed’.39

If Raz is right that law claims legitimate authority, it is no doubtpertinent to raise the two main questions that Gardner addresses.One may ask, first, how it is that law can make such claims (since,again, law is not a person – though the idea should raise no moreeyebrows than the equally personifying thoughts that law issuesrequirements, grants rights, confers powers, and so on). Second, onecan also ask whether the authority that law claims is aptlycharacterised as moral – whether law’s claim is indeed a moralclaim.40 But again our point is that neither question concerns theclaims of law-applying officials, particularly not the claims they make‘in explaining the law’.41

It is true, of course, that law-applying officials may and often dospeak, ‘in explaining the law’,42 of the legal obligations that we have.When they claim that ‘X has a legal obligation to u’, however, theseofficials are reporting that X has a legal obligation to u: they arereporting that X is required by law to u. And if the thought is correctthat when law requires X to u, it implicitly claims that X has reasonto u, then when law-applying officials report that law requires X tou, they also report that law claims that X has reason to u. They thus

39 Emphasis added. Gardner quotes this passage from Raz’s 1985 paper ‘Authority, Law, andMorality’: see ‘How Law Claims, What Law Claims’ (n. 4) 127.

40 Here there is at least some plausibility to the thought that importance may be a relevant criterion;the sheer scope of the power that law-making authorities claim to have, which is a power to imposeobligations on virtually all aspects of life, and therefore a power, as Raz puts it, ‘to impose dutiesaffecting central areas of life’, suggests that law does claim moral authority for itself: see J. Raz,‘Incorporation by Law’ (2004) 10 Legal Theory 6. Gardner may have a similar idea in mind, though hedoes not put the point quite this way. Instead he speaks as if he thinks (a) that any issue, the resolutionof which has ‘important consequences for someone’, is for that reason a ‘moral issue’, (b) that thismeans that all legal issues are moral issues, and (c) that the fact that all legal issues are moral issuessupports the thought that law’s claims are moral claims: see J. Gardner, ‘How Law Claims, What LawClaims’ (n. 4) 135–136. We are not sure (a), (b) or (c) is true, but we cannot pursue the point here.

41 J. Gardner, ‘How Law Claims, What Law Claims’ (n. 4) 132.42 Ibid.


make what Gardner calls a ‘second-order claim’ reporting the claimsmade by law through its law-making authorities.

It may be helpful to summarise our conclusions. We saw inSection 2 that Gardner takes the following statements to be equiv-alent:

(1) X has a legal obligation to u.(2) According to law, X has an obligation to u.(3) Law claims that X has an obligation to u.

On the basis of this equation, Gardner argues that (a) if law makesclaims, law’s claim cannot be that there are legal obligations (rights,permissions, etc.), and that (b) law’s claim is therefore betterunderstood as the claim that there are moral obligations (rights,permissions, etc.). We took issue with Gardner’s arguments for (a),and suggested that the inference from (a) to (b) is unwarranted in theabsence of an argument that law makes any claims at all. We alsoargued that (1), (2) and (3) are not equivalent. To state that X has alegal obligation to u is to state that X is required by law to u. Sostatement (1), we suggested, is equivalent, not to (3) (for require-ments are not claims), but to (1b):

(1b)Law requires X to u.

And if we are correct that a requirement that someone u-s isnecessarily accompanied by the claim that the addressee has reasonto do as required, then whoever makes claims (1) or (1b) – includinglaw-applying officials who typically make those claims ‘in explain-ing the law’ – will be committed, by implication, to maintainingthat:

(3b)Law claims that X has reason to u

or, equivalently, that

(2b)According to law, X has reason to u.

But (2b) and (3b) are not the same as (1) or (1b). They are, even in themouths of law-applying officials, third-person reports, not first-per-son iterations, of the claims of law or law-making authorities.


ACKNOWLEDGMENTS

We are grateful to Andrew Gold, Fábio Shecaira, Imer Flores, Kevin Toh,Lucas Miotto, Pedro Múrias, an anonymous reviewer for Law and Philos-ophy, and audiences in Edinburgh and Rio de Janeiro, for helpful commentsand discussion.

University of Edinburgh, Edinburgh, UKE-mail: [email protected]

Christ’s College, Cambridge, UKE-mail: [email protected]


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2 Some Claims About Law’s Claims