On the Question, “What is Law?”

DAVID HOWARTH?

ON THE QUESTION, “WHAT IS LAW?”

ABSTRACT. Re-framing discussion of the question, “What is law?” in terms of thecontexts in which the whole question makes sense allows us to see that jurisprudenceis about boundary disputes concerning law – that is about what should count as law –and about responses to attacks on the value of law. Concern for these two issues consti-tutes the boundary challenge perspective. The boundary challenge perspective not onlyallows us fully to escape essentialism about law, it also provides us with a better under-standing of the relationship between the activity of discussing what should count as lawand the activity of specifying the law in particular circumstances. The boundary challengeperspective provides a better explanation of that relationship than positivism or natural law.It allows discussion of change and resistance to change without significantly weakening thedistinction between “is” and “ought”. It might also form the basis for further historical andsociological studies of law.

KEY WORDS: autopoiesis, boundary challenge perspective, concepts of law, feminism,law and economics, legal positivism and natural law, political sociology of law, republic-anism vs liberalism

At the start ofThe Concept of Law,1 H.L.A. Hart remarks that the ques-tion, “What is law?”, is a strange one. He claims, plausibly enough, thatchemists and medical researchers do not spend much time asking “whatis chemistry?” or “what is medicine?” Nor do they find it worthwhile topropound odd sounding answers to those questions, such as “medicine iswhat doctors do about illness”. Hart prompts the reader to wonder why“what is law?” seems so much more interesting a question than “whatis chemistry?” But he appears suddenly to abandon this line of thought.Instead of giving an account of why “what is law?” seems so compelling aquestion, he substitutes for it a series of other questions, related to “whatis law?” but different from it, that seem to him to be more interesting andmore tractable.

? I am very grateful to Nigel Simmonds, Matt Kramer and the anonymous referees ofRes Publicafor their helpful comments on previous versions of this piece. They saved mefrom many errors, both of substance and of style. For the errors that remain, and for thosethat I have introduced in response to their criticisms, I am, of course, solely responsible.

1 Oxford: Oxford University Press, 1961 (2nd edition 1994), 1.

Res Publica6: 259–283, 2000.© 2000Kluwer Academic Publishers. Printed in the Netherlands.

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Other legal philosophers have followed his lead in leaving the pecu-liarity of the question behind as quickly as possible. Anthony Allott, forexample, posed a counter-question that flows directly from the peculiarityof “what is law?”, namely “why do you want to know?”2 But instead ofasking why people ask the question, Allott asserted that the question isreally three different types of request for information flowing from threedifferent meanings of the word “law”.3 Ronald Dworkin similarly said thatthe question is about the meaning of the word ‘law’ and dismissed thatquestion as uninteresting, as “the semantic sting”.4 Joseph Raz says bluntlythat “the meaning of the word ‘law’ has little to do with legal philosophy”and rushes on to think about the terms “legal” or “legally”.5

This article seeks to slow down the rush to attempts to answer thequestion, “What is law?” or to dissolve it or dismiss it or to answer someother question. It starts further back. It concentrates not on the word “law”,but on the whole question, “What is law?” For Hart was right to say that“What is law?” is a strange question. But to understand it requires not ananalysis of the word “law”, as Allott and Dworkin believed,6 but a grasp ofthe context in which such a question can be asked in the first place. “Whatis law?” is peculiar because it looks like the kind of question that ariseswhen, as Wittgenstein put it, language goes on holiday, when it becomesunattached to any context or activity.7 That is why Raz, for example,moves straight on to talk about “legally” – he immediately identifies acontext, telling someone what the law is, in which saying “legally. . . ”makes sense.8 But here we shall look for the dialogical circumstances inwhich the whole question, “What is law?” itself can make sense. Allott’sresponse was also correct. It is important to ask why should anyone ask,“what is law?” But instead of concluding immediately that there is no goodreason to ask the question, so that the best way to deal with it is to ignoreit, this article claims that there are contexts in which the question can arise

2 Limits of Law(London: Butterworths, 1980), 123.3 Ibid., 1.4 Law’s Empire(London: Fontana, 1986 and Oxford: Hart, 1986).5 J. Raz, “The Problem about the Nature of Law”, inEthics in the Public Domain

(Oxford: Clarendon Press, 1994), 195.6 But not necessarily Hart himself. The three issues he substitutes for “What is law?”

– the relationship between law and orders backed by threats, the relationship betweenlaw and morality and the nature of rules – can be seen as attempts to defend law fromreductionist claims rather than simply questions of usage. I am grateful to Nigel Simmondsfor pointing this out.

7 L. Wittgenstein (trans. G.E.M. Anscombe),Philosophical Investigations(Oxford:Blackwell, 1978, 3rd edition) (1st edition 1953), section 38.

8 Op. cit., 181.

ON THE QUESTION, “WHAT IS LAW?” 261

and in which it does make sense. But to find that sense we have to be opento a wider range of usage than that usually considered in jurisprudence. Inparticular, we have to abandon the idea that questions in the form “whatis X?” are always (or even often) requests for information or enlighten-ment about X. Asking a question can sometimes be a way of expressingother things. One obvious example, admittedly not particularly relevantto this article, is the ‘rhetorical’ question, a statement put in the form ofa question on the assumption that only one answer to it is possible. Butquestions have other more immediately relevant functions: for example,expressing exasperation or issuing challenges to established ways ofthinking.

One of the consequences of becoming more open to wider dialo-gical contexts than simply giving and receiving information or theoreticalenlightenment is that we can see clearly that jurisprudence is, and hasalways been, an exercise in challenge and response, in critical theory in itswidest sense. Jurisprudence is the intellectual aspect of politics about law,about the justifications for the existence and the boundaries of law. Unlikemost attempts to link politics and jurisprudence, however, this attemptwill also be able to specify a calmer but perhaps more brutal intellectualactivity, a political sociology of legal systems, in which we face up to therealities of who has won and who has lost in the battles to justify theexistence and set the boundaries of law, and which we can use to lookcalmly, but brutally, at the prospects for future change. But we shall alsosee that the possibility of a political sociology of legal systems does notmean that those engaged in the legal system, especially judges, can alwaysevade making substantive judgments about the value and boundaries oflaw. We conclude by restating positivism and natural law in the light ofour discussion of boundary challenges and suggest that both positivismand natural law mistake the nature of boundary challenges.

A PARALLEL

Although chemists seem to be uninterested in the question, “What is chem-istry?” there is certainly one activity in which the “what is . . . ?” questionseems to be of very great interest both to its practitioners and to theircritics, namely art.9 “What is art?” is a question that seems endlessly raisedby artists, exhibitions and critics.

9 See e.g. R. Wollheim,Art and its Objects(Cambridge: Cambridge University Press,1980) (1st edition 1968), especially sections 1–3. Bix also notices the affinity between“What is law?” and “What is art?” See B. Bix,Jurisprudence: Theory and Context(London: Sweet and Maxwell, 1996), 17.

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It is important, however, to understand the question in its context. Thequestion, “What is art?” typically arises not in idle conversation but inspecific circumstances. These circumstances are most easily described asreplications of a notorious stunt performed by Marcel Duchamp in 1917. Inthat year, Duchamp entered an art competition in New York. He presentedto the judges an ordinary mass-manufactured porcelain urinal, to whichhe gave the title “Fountain”. He wrote the name “R. Mutt” on the urinalas a ‘signature’. Replications of this stunt include presenting as art worksdead cows in formaldehyde, piles of bricks in the Tate Gallery and evenpretending to have gone on an exotic holiday using money from an artschool grant. Spectators are invited to exclaim, “That’s not art!” Duchampand his admirers then reply, “But what is art?”

Duchamp had two explanations of the objects he used in these stunts,his “ready-mades”. One was that art is anything we come to regard as art.He was claiming that the boundaries of what counts as art are contest-able, and that some people might wish to change them.10 A version of thisexplanation is the “institutional” theory of art,11 according to which “art”is an arbitrary social construction. What counts as “art” at any particulartime can be explained by reference only to the power relationships betweenpatrons, critics, artists and collectors. The ready-mades, on this view, openup the question of what should count as “art” to more general debate byinviting all viewers to join in.

The other explanation Duchamp gave was that his ready-mades wereanti-art – they demonstrated that all art is junk and that the values for whichart stands are junk. The “institutional” theory, on this view, is not so muchan attempt to open up the question of what counts as art as a protest againstthe power of those who control the definition of art.

The question, “What is art?” is not so much a question as a challenge.Either it challenges the boundaries of art, and attempts to change whatcounts as art, or it challenges the values of art, and denies that art is valu-able. It might even be both – an attempt to undermine art by expanding itsboundaries so far that its values can no longer be identified, an attempt atdestruction by dilution.

10 Cf. W. Gallie, “Art as Essentially Contested Concept”,Philosophical Quarterly,6 (1956), 97–114, drawing on his celebrated essay “Essentially Contested Concepts”,Proceedings of the Aristotelian Society56 (1955), 167–98.

11 See G. Dickie,Art and the Aesthetic(Ithaca, NY: Cornell University Press, 1974) andWollheim op. cit., 157–66.


WHAT IS LAW?

Are there circumstances in which people exclaim, in the spirit of the imit-ators and successors of Marcel Duchamp, “But what is law?” Considerthe following. A litigant, perhaps from a foreign country, attempts to bribea judge. “That is insulting,” says the judge; “in this country we judgesmake our decisions according to law.” “But what is law?”, asks the briber;“Surely money talks here like anywhere else.” Or the following: a litigantasks her lawyer to raise in court a number of points the lawyer believes tobe legally irrelevant. “The points you raise are nothing to do with the law,”says the lawyer. “What’s law, anyway?” replies the frustrated litigant – “Ithought it was about fairness.” Or, finally, the following: in parliament, theopposition claims that the government is operating by arbitrary rule ratherthrough law. “What’s the difference?” remarks the government’s spin-doctor to a lobby correspondent. “What is law, anyway? It’s just anotherway we get people to do what we want.”12

None of these questioners is asking for information about law, or formetaphysics. Like Duchamp’s stunt, these questions are above allchal-lenges. The contemptuous failed briber is saying that law pretends to beabove financial incentives, but it is not. He might argue, for example, thatmoney influences politicians who make the law, and that money buys betterlawyers, who win cases. Why should judges presume to be so righteous?The frustrated litigant wants to challenge the boundaries of what counts as“law”. She wants to expand the list of considerations on which courts relyin justifying their decisions.13 She believes that law should concern itselfwith all arguments that are relevant to the question of whether her claim isjust. The cynical spin-doctor is saying that law is power in disguise, andthat the disguise has no inherent value.

Like Duchamp’s ready-mades, such challenges can operate in twoways. They can challenge the boundaries of what counts as “law” (togetherwith the way in which those boundaries come to be defined) and theycan also challenge the idea that law has any value at all, often throughchallenging the self-image of lawyers. Any reply (“response” might bebetter, since a challenge does not invite a “reply”) must therefore makepoints either about law’s boundaries or about its value. Any other response,such as a ‘definition’ of law, would simply be off the point.

One response might be to ignore these challenges altogether. They typi-cally come from outsiders to the law, from people who know relatively

12 Cf. “As Tim Campbell said: ‘What’s the constitution among friends?’ ” – W. Riordon,Plunkitt of Tammany Hall(New York: E.P. Dutton, 1963), 13.

13 Cf. Raz’s “basic intuition”: op. cit., 183.

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little about the law. Why should jurisprudence care about what might becharacterised as the ravings of the ignorant? Duchamp, in contrast, knewa great deal about art (even though that might not be true of his imitators).His challenges came from an insider who was taking an outsider’s view tomake points designed to unsettle other insiders. This is not the role playedby disappointed bribers, irate litigants or cynical spin-doctors.

But there is a compelling reason why jurisprudence should take thesechallenges seriously. Whereas people can ignore art, outsiders have nochoice but to care about law. The law purports to tell non-lawyers whatto do and to justify state action against those who fail to comply. Law hasreal and often painful consequences for millions of people, people who donot understand it. Legal theory often seems obsessed with the inputs intolegal decision-making – the place of rules, principles, discretion, fidelityto law, political and moral commitments and so on – but the outputs – loss,pain and defeat, gain, joy and triumph – matter more to the world beyondthe court. Autopoietic law might be a comforting hypothesis for lawyersand legal theorists seeking to shake off the dark threats of ordinary politics,but the self-generation of law by law makes the justification of law as aninstitution more, not less, difficult.

The internal perspective which has dominated jurisprudence from Hart,through Dworkin and now to autopoiesis, has tended to dismiss theconcerns of outsiders as a naïve epistemological challenge to lawyers’claims to ‘know’ the law, or to anyone’s claim to know anything. But theconcerns that outsiders are expressing in asking, “What is law?” wouldstill be concerns even if there were always a right answer to a case, evenif a legal system could operate successfully when only ‘officials’ tookthe internal point of view, and even if the law were normatively closed.The concerns are with the law’s pretensions to autonomy, with the extentof its autonomy and with the consequences of believing in its preten-sions. Outsiders are expressing a political scepticism about law, not anepistemological scepticism.

BOUNDARY DISPUTES ANDCONCEPTS OFLAW

A number of standard jurisprudential positions and debates can be seeneither as boundary challenges of the same sort as “What is law?” or asresponses to such challenges. We shall mention a few examples and askwhat we can learn from these disputes when they are seen in this way.

The most conspicuous example of a boundary challenge in law is thedebate over the law and economics movement. The law and economicsmovement has sought to expand the range of legal argument to include


considerations of economic efficiency, and even to subsume legal argu-ment into efficiency. The debates about whether wealth is a value14 wereabove all an attempt to resist the boundary change that law and economicsproposed.

The law and economics movement holds a view of law not far removedfrom that of the cynical spin-doctor. The purpose of public policy shouldbe, it says, to deliver economic efficiency. Law is a method of deliveringthat efficiency. If it fails to do so, it should be changed or replaced. Altern-atively, law and economics denies that there is much judges can do to resistthe claims of efficiency and that law is, in the long run, the outcome ofeconomic forces outside itself. Law is another way in which efficiencyplays itself out in society.

Another example of a boundary challenge is feminist jurispru-dence. One way of reading objections to law’s excessive rationality andmasculinity and its disregard of the emotional core of disputes is thatlaw should encompass ways of dealing with disputes that seek to restorethe relationships between the parties, ways that deal with whole people,including their emotions, not just with their property holdings. This isa challenge to the limits of what courts (and policy-makers using legalmethods) believe to be the appropriate scope of their concern.

A third example is the debate about rights between “liberals” and“republicans”. Should legal rights trump democratic politics? Or, on thecontrary, should judges take into account the state of public opinion indeciding cases? Which side is challenging the existing boundaries andwhich side is responding to the challenge depends on which side of theAtlantic one sits. In the land of rights, republican and communitariancritics complain that rights-talk undermines political participation, alien-ates people from one another and disguises underlying political disputes.In the land of majoritarianism, critics complain that politically inspiredpanics are used to justify instant repression and that the power of moneyover the media means that political participation is far from a guarantee ofpolitical freedom.

The three examples represent different stages in the development of aboundary challenge. Feminist jurisprudence is at a fairly early stage in itschallenge. In most Western countries, legal adjudication remains firmlyparticularistic, and although there have been some moves to recognisemore holistic methods, for example in the alternative dispute resolu-tion movement, legal systems on the whole remain “masculine” in theirapproach. The law and economics movement, in sharp contrast, hasmounted a largely successful attack on pre-existing doctrines that excluded

14 See R. Dworkin,A Matter of Principle(Oxford: Oxford University Press, 1986).

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efficiency, or even all policy considerations, from explicit considerationin the courts. It has even changed the way policy-makers think aboutlaw. Policy-makers themselves no longer treat legal reform as a matterbeyond economic analysis, for example. The liberal-republican debate is,and perhaps will always remain, at an intermediate stage, at which bothsides can claim some victories.

But one should be able to see at once that boundary disputes do notlead to the same boundaries everywhere. In the United States of America,the use of economic ideas in the course of argument and justification isso commonplace that it has become part of the taken-for-granted legalworld.15 In England, in contrast, although economic analysis is makingprogress in the courts and at the Lord Chancellor’s Department, the use bythe House of Lords in 1996 of the term “consumer surplus”16 was an eventin itself. The English Court of Appeal still feels that the term requires theuse of inverted commas to indicate its novelty and strangeness.17

Many theorists dismiss this diversity as trivial. But it gives rise to animportant problem. Those who want to make generalisations about law orabout legal systems have to begin with at least one concrete legal system.If they adopt the boundaries established for the time being in that systemas their own starting point, they automatically import a whole series ofpast decisions about where the boundaries should be, decisions of whichthey might themselves disapprove, at least if they gave the matter anythought. One strategy is to say that one has to start somewhere and to takeexisting boundaries for granted. But if one adopts that strategy, one cannotobject to other theorists doing the same for their own time and place. Theeffect of this is often that one quickly runs into mutual unintelligibility. Adifferent strategy is to attempt to identify and either justify or reject theboundary decisions that have already been made. Is it right that judgesrefer to past cases in their decisions? To what extent should current publicopinion influence decisions? Should the courts aim at reconciliation of theparties or at the decisive condemnation of one or more of them? One mightbe tempted into even more fundamental questions. What should count asa “court” or a “judge”? Why should there be “courts” and “judges” at all?Admittedly, if other theorists from other times and places follow the samestrategy they will not end up discussing exactly the same list of questions;

15 A simple LEXIS search will reveal, for example, that Richard Posner’s bookTheEconomic Analysis of Law(Boston: Little Brown, 1972) alone has been cited more than70 times in judgments of the U.S. Supreme Court and of the supreme courts of the severalstates.

16 In Ruxleyv. Forsyth[1996] 1 A.C. 344, [1995] 3 All E.R. 268.17 In Attorney-Generalv. Blake[1998] Ch 439, [1998] 1 All E.R. 833.


but, if there is any continuity at all over time or any contact between civil-isations, there will at least be some overlap between the lists. Hence therewill be a degree of mutual comprehensibility.

Furthermore, the existence of questions on somebody else’s list but notone’s own is an opportunity to identify boundary decisions that one’s ownsystem has taken, but of which one was not previously entirely conscious.For example, the decision in England to abolish the grand jury but to retainthe institution of the lay magistracy might suggest to continental lawyersthat they should count among the boundary decisions taken by their ownsystems the preference for an exclusively, or almost exclusively, profes-sional judiciary. Continental lawyers might even think about relativisingsome of their more general conceptions of law, conceptions that might nowbe seen as flowing from specific boundary decisions. Niklas Luhmann, forexample, famously described law as “normatively closed but cognitivelyopen” and went on to say that “[T]here is no import of normative qualityfrom the environment into the system, neither from the environment ingeneral (nature), nor from the internal societal environment (such as reli-gion or morality) . . . . If the legal system refers to extra-legal norms, suchas loyalty or belief or good practice, these norms attain legal quality onlywith this reference.”18 If this passage is to amount to more than a stip-ulative definition, one can usefully ask when and how normative closuretook place and in what circumstances it might be reversed.19

The first strategy seems to be the one that legal theory has usuallyfollowed. Hart uses post-war England as a starting point, Dworkin theUnited States post-Brown v. Board of Education, Luhmann the FederalRepublic of theWirtschaftswunder. But the second strategy seems clearlypreferable if there is to be any collaborative effort in the field. Furthermorethe second strategy holds out a much better hope of justifying the existingboundaries to politically sceptical outsiders, or of agreeing proposals forreform with them. The first strategy has the disadvantage of tempting itsusers to tell sceptical outsiders that their challenges arise because theyjust do not understand what law is, whereas what law is is precisely whatsceptical outsiders are challenging. The second strategy allows for, andencourages, a discussion of the real issues.

18 N. Luhmann,A Sociological Theory of Law(M. Albrow trans.) (London: RKP, 1985),283–84.

19 When and how it took place is one of the main themes of Max Weber’s sociologyof law (see M. Weber,Economy and Society(Roth and Wittich trans.) (Berkeley: UCLAPress, 1978), 641–900. Weber was notoriously dismissive of the likelihood of its beingreversed, although the events of the 20th century after his death might have given himpause for thought.

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The second strategy, which we might call the boundary challengeperspective, has an interesting property. What does the activity of trying togive defensible answers to all the boundary questions so far posed amountto? It is not the description of any existing legal system. Rather, it is theconstruction of an ideal legal system. Existing legal systems may be calledin aid as evidence of what happens if we decide one way or the otheron a particular boundary question, but the fact that no legal system yetexists that makes all the choices that we say should be made is in itself ofno consequence. Admittedly there is no guarantee that there is a decisiveanswer to all or even to any of the boundary questions. The right answerthesis does not apply to a field of activity in which we do not inevitablytalk about the questions at hand in a way that assumes that they have aright answer. But the point of the activity is clear, and it is not “descriptivesociology”. We are not engaged in telling others how we talk about lawand we are not engaged in making the existing system the best it can be.We are engaged in criticising or defending institutions and the decisionsthat have shaped those institutions. It is an activity close to what Dworkincalls “global internal skepticism”,20 except that Dworkin assumes that the“global internal skeptic” must be a person who “concludes that the prac-tices . . . serve no good purpose, or, even worse, that they serve a malignone”,21 whereas the boundary challenge perspective includes argumentsin favour of the existing boundaries as well as arguments for changingthem.

If descriptive sociology is one’s aim, the boundary challengeperspective does, however, provide a distinctive method. We can describea legal system in terms of the boundary decisions that have generated itspresent state. We can compare different legal systems by comparing theirboundary decisions. We might even be able to identify typical clusters ofboundary decisions and perhaps typical paths that systems take to reachparticular configurations, a morphogenesis of legal systems. But suchdescriptions cannot by themselves tell us what does or should count as“law”. They can tell us only how other systems resemble or differ fromeach other. They cannot tell us which system counts as the “central case”and which are “penumbral” or “pathological”. Just as the idea of evolutionundermines the idea of permanent classification in biology, such a politicalsociology should undermine any remaining essentialism in the descriptionof legal systems.22

20 Law’s Empire, op. cit., 79 and 266–75.21 Ibid., 79.22 Arthur Jacobson makes a similar point in relation to autopoiesis in his excellent review

(at 87 Mich. L. Rev. 1647 (1989)) of Günther Teubner’sAutopoietic Law: A New Approach


If we want to go further than description, we have to engage inthe substance of the boundary disputes themselves. We have to say, forexample, whether we approve or disapprove of judges who decide caseson grounds of economic efficiency. Are we impressed, for example, bythe argument that giving weight to efficiency fails to respect the autonomyof the parties to the dispute – that it is treating people as means, not asends in themselves? Are we impressed by prudential and pragmatic argu-ments, for example that it is naïve to imagine that judges can make accuratepredictions on the information supplied in a trial or that what is efficientis notoriously sensitive to small changes in circumstances – especially inthe costs of doing business? Do we believe that economic efficiency itselfis not a suitable concept to use in judging cases because what is efficientvaries with different distributions of wealth? None of these arguments, andnone of the familiar counter-arguments to them, is a matter of descriptionor even of interpretation. Rather they are substantive political argumentsabout what the scope of legal argument should be.

Can we escape this conclusion by domesticating boundary disputesby turning them into ‘ordinary’ legal disputes? Undoubtedly boundarydisputes do make appearances in court – whether a particular form of argu-ment is relevant or admissible is a legal question, as is whether a particulargroup of people constitute a court or whether the court should enforcerights strictly or instead should require people to resort to the politicalarena. Dworkin makes the more general claim that one can incorporateinto his interpretive theory even the person who wishes to challenge whatcounts as legal material at the “pre-interpretive” stage.23 Can we claim, inother words, as proponents of autopoiesis might claim, that the question ofwhat counts as law is an exclusively legal question, a question the answerto which is generated from within the law?24

Certainly in a dynamic legal system, the system itself can generatenew answers to boundary questions. No U.S. legislature had to pass alaw to enable the U.S. courts to cite the works of Richard Posner, andthe citation of economic arguments might itself be seen as a developmentof earlier practices such as the Brandeis brief.25 But the fact that onecan re-describe boundary challenges in ways that make them appear to

to Law and Society(Berlin: Walter de Gruyter, 1988), citing E. Mayr,The Growth ofBiological Thought(Cambridge, Mass. and London: Belknap Press, 1982), 251–98.

23 Law’s Empire, op. cit., 92.24 Hart, of course, did not make any such claim, preferring to leave the rule of

recognition with a non-legal status.25 There is, however, a subtle though crucial difference between offering statistical

evidence of the effects of a statute as part of making a case that, for example, the statuteshould count as constitutional because it is a rational and proportionate response to a

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be ordinary legal disputes disguises their importance and glosses over theruptures in legal thinking that successful boundary challenges represent. Itmight be possible, for example, to say that the incorporation of the goalof economic efficiency into mainstream legal thinking came about afterwriters, especially Posner himself, persuaded a large number of Amer-ican lawyers that much of nineteenth and early twentieth century caselaw promoted economic efficiency, albeit usually unconsciously, so that itwas a permissible interpretation of the common law to say that it requiresmodern judges to promote economic efficiency. But the techniques ofpersuasion should not be confused with the substance of what people havebeen persuaded of. Modern American lawyers read different works andthink different thoughts from their nineteenth century predecessors. Realchange has taken place.

It is a characteristic of presently existing legal argument in manywestern countries, though of course not necessarily an essential or eternalcharacteristic, that it likes to disguise change. In some systems, the maintechnique is to “re-interpret” a mass of old decisions. In other systems, themain technique is to maintain a stern silence about all past decisions. Butthere is no need to hide the fact of change from ourselves. That serves onlyto hide from us the possibility of future change, for better or for worse.

More radically, Roberto Unger proposes an institutional order,“empowered democracy”, which “softens the contrast between movingwithin a context and fighting about its terms”. Unger wants to see boundarychanges made easier, to make “stable and routine” conflicts, whether in lawor in politics more generally, “more like their exceptional, destabilizingmanifestations”.26 But, as Unger himself sees with great clarity, such aninstitutional order would in itself constitute a radical departure. Moreover,the desirability of abolishing, or moving towards abolishing, the distinc-tion between questions of legal or political structure and questions ofthe content of legal or political decisions is far from self-evident. At thelevel of constitutional politics, for example, a system which has no way ofdistinguishing structural or “constitutional” decisions from other politicaldecisions, the British system for example, is not obviously superior to a

particular mischief and saying that the court should choose to abandon an old rule becausea new rule would have better consequences.

26 False Necessity(Cambridge: Cambridge University Press, 1987), 367. Unger’s devi-ationist doctrine method, including the principle-counter principle claim (“[T]o everyprinciple there corresponds a counter-principle that reverses its content and limits itsapplication” – ibid., 101), can be seen as specific techniques to persuade people to acceptthe softening of the distinction between the structural and the everyday.


system that distinguishes, often dramatically, between ordinary politicsand constitutional politics.27

A second point arises from considering examples of boundary chal-lenges, namely that the act of thinking about such challenges, whether onesthat have happened in one’s own system or ones that have happened else-where, brings the existing boundaries into view, often for the first time. Wesee the boundaries as shadows produced by the light cast on them by thechallenges. But since we cannot anticipate all possible future challenges,we cannot be sure that we have exhaustively listed or justified the existingboundaries. They can be identified and justified (or not) only for the timebeing. Similarly, meeting a challenge concentrates attention on particularaspects of law, but not on all of them. Any existing practice might at somepoint come under challenge, but it is difficult to see itasa practice until itis challenged.

The boundary challenge perspective thus manages to combine elementsthat are sometimes thought to be incompatible. It avoids essentialism butalso maintains the distinction between “ought” and “is”. We can describewhich boundary challenges have succeeded so far without having to priv-ilege the present position either empirically or normatively. We can dothis both because we have permission to disagree with the outcome ofpast challenges and because we know that future challenges are possiblethat might transform law in ways as yet unthought of. But we are alsoforced to be free to resist or to welcome challenges on their own merits.We know that it is not a good reason to resist a challenge that law as weknow it would no longer exist. What past boundary disputes have given us,future boundary disputes can take away. Furthermore, there is no need forthe slipperiness between “ought” and “is” that Dworkinian interpretationintroduces. If we are honest enough, we can look the outcomes of pastchallenges squarely in the face and admit that we would have preferreda different direction to have been taken. We can also hope for a changeof direction in the future, and work for that change, at the same timeas admitting that the probability of change in the direction we wouldprefer is low. But although we might take into account the probabilitiesof change in deciding what to do, they might nonetheless not determinewhat we decide to do. Politics, including jurisprudential politics, is oftenabout learning to deal with defeat; and we can react to defeat in differentways. The fact of defeat and the improbability of future success mightdiscourage us into inaction, but, as Max Weber said of those who have a

27 B. Ackerman, “The Storrs Lectures: Discovering the Constitution”,Yale Law Journal93 (1984), 1013–72 andWe, The Peoplevol. 1 (Cambridge, Mass: Harvard UniversityPress, 1991).

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vocation for politics, we might instead say “[N]evertheless. . . ” and fighton.28

The boundary challenge perspective agrees with Unger that “everythingis politics”,29 at least in the sense that anything is possible; and it is, inUnger’s terms, anti-necessitarian – it denies conservatives the possibility ofarguing that change is impossible, but it also denies radicals the possibilityof arguing that change is inevitable. It also supports Unger’s contentionthat discourse by lawyers about law has no “permanent essence”30 andagrees with him that, “[I]n dealing with such a discourse, what we canreasonably ask is – In what form have we received it, and what shouldwe turn it into?”31 It also has no objection to Unger’s formula that onecannot be a visionary without being a realist32 – if one confuses whatone wants with what exists, one risks political paralysis. Where it partscompany with Unger is on the other part of his formula, that one cannotbe a realist without being a visionary. Understanding the possibility ofchange, or at least the possibility of difference, is undoubtedly a precondi-tion for understanding current reality. But the possibility of change for theworse will do just as good a job here as the possibility of change for thebetter.

It might be tempting to say that the boundary challenge perspectiveis similar to Thomas Kuhn’s paradigm shift perspective on the history ofscience.33 One might think of boundary challenges as attempts at paradigmshifts and of ordinary legal decision-making as “normal science”. But weshould resist that temptation. Kuhn’s model, rather like Dworkin’s, is a‘fit’ model – paradigm shifts occur when the existing corpus of theoriescan no longer deal with the data. The boundary challenge perspective israther less prescriptive. There is no presumption that the boundaries of thelaw do or should respond to any particular change in law’s environment.If one needs a parallel with perspectives on the history of science, theboundary challenge perspective has more in common with Feyerabend’smethodological anarchy than with Kuhn’s model.34 Challenges can come

28 M. Weber, “Politik als Beruf”, inGesammelte Politische Schriften(Tübingen: Mohr,1958, 2nd ed.), 548. Translations include W. G. Runciman, ed.,Weber: Selections in Trans-lation (Cambridge: Cambridge University Press, 1978), 225 and H. H. Gerth and C. WrightMills, From Max Weber(New York: Oxford University Press, 1946), 128.

29 Op. cit., 3.30 R. Unger, “Legal Analysis and Institutional Imagination” [1996] MLR 1, 8.31 Ibid., 8.32 Ibid., 22.33 T. S. Kuhn,The Structure of Scientific Revolutions(Chicago: University of Chicago

Press, 1970, 2nd ed.).34 P. Feyerabend,Against Method(London: Verso, 1988, 3rd ed.).


at any time and be dealt with in any way. They can also overlap, interactand be left unresolved or partially unresolved for long periods of time.

As a matter of descriptive sociology, the model that best captures theprocess of raising, struggling for or against and resolving boundary chal-lenges is March and Olsen’s celebrated Garbage Can model.35 Accordingto the Garbage Can model, decisions are opportunities for whoever hasaccess to the decision-making process to raise whatever issues and petsolutions they want, rather as if decisions were garbage cans into whichthose within range can toss whatever they want. To understand decision-making is, therefore, a matter of understanding who has access to decision-making opportunities and what problems and solutions they are likely tothrow into them. Thus boundary challenges will succeed or fail accordingto what those with access to important decision-making opportunities thinkabout them.

Access to decision-making opportunities is an important boundaryissue in itself. The social structure of the law can be described in termsof who has what degree of access to legal decision-making opportunities.The present configuration of access is the result of past boundary chal-lenges – the degree of exclusion of certain political office holders fromdecisions in particular cases, for example, or the degree of inclusion ofnon-lawyers such as jurors or lay magistrates. But that configuration canbe changed in a number of ways – by the brute politics of threat andinducement, for example, or by methods usually recognised as more legit-imate, such as legislation. Institutionalised rules about access, includingconstitutional law, are resources in the hands of participants, but they workonly to the extent that support for them can be used to mobilise importantpolitical support. Constitutions cannot prevent revolutions, but support fora constitution can be a reason for resisting a revolution.

This brings us to the third and final point that surfaces if we considerrecent boundary challenges. Jurisprudence is political action. All threeexamples are about influencing legal decisions to reflect the concerns ofparticular political programmes. Oddly, however, at least two of the threeare attempts to shift the boundary between law and politics so that “law”includes ideas that will tend to alter the balance of decision-making inthe desired direction. It is as if both law and economics and feministjurisprudence (and perhaps some versions of the “liberal” side of theliberal-republican debate) accept that to call a legal decision “political”

35 J. G. March and J. P. Olsen,Ambiguity and Choice in Organizations(Bergen:Universitetsforlaget, 1976). Charles Sampford’sThe Disorder of Law(Oxford: Blackwell,1989) has something of the same spirit.

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is to criticise it,36 a criticism that can be evaded if the boundary of whatcounts as law shifts in the desired direction. We can see in this the impor-tance of the boundary between “law” and “politics” even to many of thosewho want to challenge the location of that boundary.

But the importance of the boundary between law and politics does notmean that other conceptions of the relationship between law and politicsare impossible. One possibility is to regard law as a form or subset ofpolitics. The law subset might perhaps be distinguished by its slowness tochange – that is as frozen or vitrified politics – or perhaps by the restrictednumber of methods it uses (precisely which methods is a boundary ques-tion in itself). Another possibility is to use a different valuation of politics,to treat a political decision as presumptively a good decision, because itshows that the decision-maker accepts responsibility for the consequencesof the decision and is trying to achieve something specific. An a-political(or non-political or anti-political) decision, in contrast, might be regardedas irresponsible and unfocussed.

But neither of these possibilities does away with the boundary itself.They merely reconceptualise it. The existence of a boundary between lawand politics, though not its precise location, is very well entrenched. Itis in use in most of this article, for example. It seems to be a boundarythat was established early and upon which other boundaries depend. It issufficiently important that if we challenge its existence without proposinga substitute for it, we will teeter on the edge of having nothing at all withwhich to contrast law, and thus no concept of law at all. (Doing this mightamount to a challenge to the value of law, a point that we take up shortly.)To avoid this fate we need to propose a boundary that will serve the samefunction as the law-politics boundary, namely to lie at the heart of a wholecomplex of boundaries.

The distance we have to travel from our present way of thinking toconstruct such a substitute is so great that probably we cannot do itvery clearly or very well; but two possibilities spring to mind. First, onemight distinguish “law/politics” with face to face interaction, or withpersonal relations. On this view “law/politics” is the faceless exerciseof power, in contrast to building relationships with specific other peopleand even making self-sacrifices in the interests of others. Second, onemight distinguish “law/politics” from “science” – that is we might takeas an important boundary the distinction between discourses of powerand discourses of truth. The former might develop along the lines ofdistinguishing between public and private roles and between public and

36 See further Raz, “On the Autonomy of Legal Reasoning”, inEthics in the PublicDomain, op. cit., 326.


private conceptions of justice. The latter might incorporate the relatedboundaries between how one behaves with people one does not trustand how one behaves with people one does trust and between situ-ations characterised by divergence of opinions and those characterised byconvergence of opinions.37 Both possibilities seem to have the capacity togenerate plausible societies, albeit societies somewhat different from ourown.

THE VALUE OF LAW

The other sense of “What is law, anyway?” parallels the second of MarcelDuchamp’s explanations for his ready-mades, that all art is junk. It chal-lenges the value of law, rather than its existing boundaries. It is typicallya protest against the power of those who control the law and who use itto control others. The context in which it arises is typically a discussionof whether the law should be obeyed. “What is law, anyway?” prefacesa characterisation of law that is meant to undermine respect for it. Someof these characterisations can be dismissed as protests against the existingboundaries of law combined with an exaggerated belief in the inability oflaw and legal institutions to change. Examples include “law is inherentlyundemocratic” or “law ignores emotions and separates people from oneanother”. One might answer, “[Y]es it is at the moment but it can change.”But other such attacks are not so easily dismissed. For example: “[W]hatis law anyway, apart from the artfully disguised exercise of arbitrarypower?”

Challenges to the value of law characteristically contain two distinct butlinked attacks on law. One is that we should not care about law. The other isthat we should not care for law. The former, not caring about law, normally

37 See E. T. Jaynes,Probability Theory: The Logic of Science(Fragmentary Editionof 1996), 5–7 (http://bayes.wustl.edu/etj/prob/cc05e.pdf) for an elegant exposition of whythe opinions of participants in scientific debates tend to converge when new informationappears, whereas those of participants in political debates tend to diverge. Divergenceoccurs when people differ about the extent they can believe the person who gives themthe new information. Party allegiance thus leads to divergence. Jaynes’ point is that anyfield, if infected by the distrust that political actors have for one another, can fall intodivergence. Even science could collapse into divergence if scientists could no longer nearlyalways believe what experimentalists told them and serious differences appeared about thetrustworthiness of particular experimentalists. For another version of this point see SteveFuller,Science(Buckingham: Open University Press, 1997). Jaynes’ exposition could alsoserve as the basis for a re-examination of the question whether there can be “legal science”.To what extent do lawyers differ about whether they can believe what other lawyers sayabout the law?

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reduces to saying that law achieves nothing special that we want to achieve.Law is no more than a disguised way of doing something else and it wouldbe better, because more honest, to concentrate on the something else. Thelatter, not caring for law, goes further – law is either a disguised way ofdoing something bad or a bad way of doing something else, or even a badway of doing something bad.38

The question whether such challenges to the value of law can ultimatelybe sustained goes beyond the purpose of the present essay. All that needs tobe demonstrated at this point is that, in the right context, a discussion of theissue is possible. Social contract arguments, for example, make most senseas attempts to meet both sorts of challenge to the value of law. Similarly,arguments about whether it is possible to tell whether anyone is followinga rule39 or whether it matters that all acts of making sense carry the riskof reading more into texts than is there40 all have a pay-off for the personwho claims that law is nothing but arbitrary power and therefore deservesno attention and no respect. They all concern the degree to which law canbring about order and predictability (although the degree to which suchorder is desirable is another question).

Another way of looking at the same question is to think about a possiblenext move in responding to the challenge, “What is law, anyway?” –which is to list the virtues of law and to attempt to resist claims that theyare illusory. For example, one might claim that law forces discussion ofdecisions in general, rather than in particular, terms and thus reduces arbit-rariness even if the discussion is hypocritical.41 In other words, the fact thatlawyers are not infinitely clever means that law acts as a real constraint.Law’s formality, its insistence on limits on the modes of expression itadmits, and its rationality, in the sense of having to give explicit reasons,reinforce its power as a constraint. They make law more difficult to manip-ulate. (Note that these points feed back into debates about boundaries: all

38 Another way of putting this would be to say that one challenge is to the importanceof law, the other to its value. The snag in this way of putting it is that “importance” mightbe taken in a way that is not really connected with the “What is law, anyway?” challenge,namely the claim that law, empirically, makes little difference to people’s behaviour (seee.g. S. Macauley, “Non-contractual Relations in Business”,American Sociological Review28 (1963), 55–67. “What is law?” is associated with a different meaning of “important”,namely “something we ought to care about”, whether we ought to care about it because itis good or because it is bad. I am grateful to Matt Kramer for prompting these distinctions.

39 See S. Kripke,Wittgenstein on Rules and Private Language(Oxford: Blackwell,1982).

40 D. Howarth, “Making Sense out of Nonsense” in R. Harrison and H. Gross, eds.,Jurisprudence: Cambridge Essays(Oxford: Clarendon Press, 1992), 29–53.

41 J. Elster, “Deliberation and Constitution Making” in J. Elster, ed.,DeliberativeDemocracy(Cambridge: Cambridge University Press, 1998).


these characteristics could be challenged, but one could plausibly arguethat, other things being equal, boundary changes that make law easier tomanipulate should be resisted.)

A variation on listing law’s virtues is to point to the virtues of legalinstitutions as they presently exist, making no claim, of course, aboutthe ‘nature’ or ‘essence’ of law. For example, it is probably easier at themoment in Britain to bribe or lobby a politician than to bribe or lobby ajudge. In some other societies at some other times this might not be so. Butit is so here and now.

The jurisprudential equivalent of the “anti-art” interpretation ofDuchamp’s ready-mades is the “trashing”42 or “southern” version of crit-ical legal studies. Mild examples include attacks on the idea that the ruleof law is an unqualified human good.43 More transgressive examples,perhaps more in the spirit of Duchamp himself, include adopting delib-erately non-standard forms for law journal articles, such as dialogues andjokes.44

Another version of the trashing project, distantly inspired by Marxism,is that “law” and “art” arise out of types of society that deserve to beabolished, and that when those types of society are replaced, the resultwill be that “law” and “art” as categories separate from “talk” and “work”will disappear. It is no use criticising these views for ‘being negative’ or“not saying what they would do instead” since they look forward to formsof life in which no replacements for “law” or “art” are needed. “Law” and“art” will wither away.

The fact that such views are possible does not mean, of course, thatthey are acceptable. The problem with trashing as encouraging the with-ering away of oppressive categories is that it implies that we know farmore about the relationships between types of society and forms of lifewithin those societies than we actually do know (or than we have muchhope of knowing). Confident announcements of laws of history and predic-tions about which forms of life develop in which circumstances do nothave an impressive record of success. There is no reason to think that wecan predict the circumstances in which the word “law” would disappearpermanently from our vocabulary, even less whether those circumstances

42 See M. Tushnet, “Trashing”,Stanford Law Review36 (1984), 293–348.43 M. Horwitz, “The Rule of Law: An Unqualified Human Good?”,Yale Law Journal,

86 (1977), 561–66.44 E.g. P. Gabel and D. Kennedy, “Roll Over Beethoven”,Stanford Law Review36

(1984), 1–55. Critical Legal Studies still lacks a real Duchamp, or even a Garfinkel, theoriginator of the study of transgressive behaviour in sociology. Perhaps the nearest anyonehas got to Duchamp in law are the war criminals and terrorists who ‘refuse to recognise’the courts that try them. The fate of such people is instructive.

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would constitute a more attractive society than the one we live in now.Indeed, one can imagine societies lacking a concept of law which wouldbe characterised by extreme cruelty, viciousness and oppression. Thecreation of conditions making possible the abolition of law is not in itselfa necessarily attractive political programme.

The value of law, however, either in the sense that we ought to careabout it or that we ought to care for it, is not established merely by showingthat the conditions of its disappearance are not necessarily desirable. Argu-ments that are more local, more short or medium term, can be made eitherway. But what we can say is that the question, “What is law, anyway?” isitself valuable because it encourages that debate to start and to continue.

Evaluation of law as an institution lies at the core of much legal theory.The project of defending law as a structure that stabilises our expectationsso that we can interact more effectively lies at the core of the work oftheorists as apparently different as Luhmann and Lon Fuller. It is playingout the concerns of the sociological functionalists and their successors,from Durkheim to Parsons, that the dynamic diversity and specialisationinherent in industrial society has destroyed the possibility of communica-tion based purely on shared values and fixed social roles. It claims that weneed a more formal structure and that law fulfils that need. Ranged againstsuch views is a position that sees law as an alienating force, destructive ofcommunication between people, a position that regrets juridification andlooks for better methods of communication between people. This posi-tion, associated with Jürgen Habermas45 and consistent with some feministviews, accepts law as important – something to care about – but evaluatesit negatively.

Not surprisingly, lawyers, and law schools, have generally favoured theFuller/Luhmann side of the debate, but “What is law?” as a challenge tothe value of law should at the very least require them to engage explicitlywith those who take a rather less comforting view of what lawyers do andwhat law schools teach.

45 The Theory of Communicative Actionvol 2 (T. McCarthy trans.) (Oxford: Polity Press,1987), 367–73. Habermas’s views in this work, which refer to the adverse effects of juridi-fication consequent on the expansion of family and educational law, and which he refers toas “law as steering mechanism”, should be seen in the context of his more general, and lessnegative, view of law inBetween Facts and Norms(Cambridge: Polity Press, 1996), 150,where he discusses “law as transformer”, as the “medium through which communicativepower is translated into administrative power”, and which, in a constitutional state, helpsto reduce the illegitimate use of social power.


“W HAT IS LAW?” AND “W HAT IS THE LAW?”

The contexts in which the question, “What is law?” make sense demandthat the discussion continue in terms of what law is for. The boundary chal-lenges require an assessment of what is achieved by the existing boundariesand what would be different if they changed. The value of law, both in thesense of caring about it and in the sense of caring for it, is also discuss-ible largely in terms of what law achieves and what would be lost weredecisions made in other ways.

To take a very well worn example, Hart says inThe Concept of Lawthat “What is law?” comes down to three questions: what is the differencebetween law and orders backed by threats; what is the relationship betweenlaw and morality; and what is a rule?46 But in what contexts do Hart’squestions make sense? The first is a relevant consideration in the questionof law’s value, the second in considering law’s boundaries and the third inboth contexts. Why would anyone ask these questions otherwise?

There seems to be only one non-evaluative context for considering thequestion, “What is law?”, namely an historical or sociological account ofpast or current boundary disputes or of past or current attempts to claimthat law has no value. Even then, discussing boundary disputes betweenother people often requires the observer to understand the boundariesthemselves as far more open to change than many of the participantsthemselves would accept. If, for example, one were to write a history ofthe Hart-Devlin dispute and its effect on legislation as the history of aboundary dispute about “law” and “morals”, it would be difficult to avoidtaking a view of the resilience of social systems under conditions of legalchange that was at odds with that which Lord Devlin propounded withinthe dispute itself.

But to engage personally in making challenges or responses to chal-lenges of the form, “What is law?” is to engage in an inherently evaluativeactivity. This is not because “law” is somehow an inherently evaluativeword. It is because the question, “What is law?” makes sense only inan evaluative context. One can attempt to describe the context and theevaluations being made by others, but to engage in the debate itself, to“answer the question” means to take part in evaluation. That evaluationmight be positive or it might be negative, but to take part in this debate isnonetheless to engage in evaluation, not to engage in descriptive sociology.

On the other hand, does it follow that it is impossible to specify the lawin a particular case without resort to law’s purposes? Are we committed inthe context of the theory of adjudication to Dworkin’s interpretive slipper-

46 The Concept of Law, op. cit., 6–13.

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iness between the law as it is and how it ought to be? My tentative answeris “not necessarily”. The contexts in which “What is law?” make sense arenot identical with those in which “What isthe law?” make sense. Becausethe contexts in which the questions make sense are so different, one stillcan ask, “What isthe law?” without engaging immediately in a challengeto the boundaries of law. But we should acknowledge that much work isbeing done here by the word “immediately”.

“What is the law?” is asking either for information or for judgment.If the question is asking for information, it is information about whatother people are likely to think, say or do – in which case the distancefrom boundary questions is as clear and as stable as the boundaries them-selves. If it is asking for judgment, the position is more complex. Answersto “What is the law?” in the context of making a judgment require theperson making the judgment to presuppose a view of law’s boundaries.Presupposition is not the same as approval, just as one can presupposea Grundnormor observe the acceptance of a rule of recognition withoutthereby signalling agreement with the norm or rule in question. There canbe a sociology or a history about the challenges that have succeeded quiteseparate from one’s own (evaluative) position about which changes shouldnot have happened and which further changes should happen. Such adescription can be accurate or inaccurate, and be tested by its predictive orexplanatory power. If one is brutally self-conscious about which previousboundary decisions one regrets and which new opportunities for changeone estimates would not immediately be accepted by others, one can makea legal judgment that presupposes even existing boundaries of which onedisapproves. It might be that there are people who cannot distance them-selves from their own views, but for many people, especially people whoare familiar with being on the losing side of a legal or political struggle,not pressing one’s own point of view, but working within a point of viewimposed by others, is a grimly familiar experience.

But if one disapproves of the existing boundaries, one is in an importantrespect in a different position from someone who approves of them or,more to the point, from one who has never thought about them.47 For theperson who disapproves of the existing boundaries, their presuppositionis more of a conscious act than for one who either approves of them orhas never considered them. One can still write poetry in heroic coupletseven if one knows about and prefers free verse, but it becomes a consciouschoice to do so. People who disapprove of the boundaries often have astronger sense of legal doctrine as something distinct either from their own

47 Cf. Hart, ibid., 107–8, where he implies that one can discuss the merits of a rule ofrecognition without affecting one’s view of “validity”.


views or from common sense than those who had never thought aboutthe boundaries. They tend also to experience law as more alien and moreexternal.

The limit, therefore, of the extent that one can separate “What is law?”from “What is the law?” is that the decision to make a judgment that doesnot challenge the existing boundaries is itself a kind of political decision.Furthermore, whether to challenge the existing boundaries is an issue thatpotentially arises for every judge in every case. But the fact that it is nota live issue in every case is not necessarily the result of implicit approvalof those boundaries (although it might be). Forgetfulness and fatalism canalso be sufficient: forgetfulness in the sense that where no-one challengesa boundary, the boundary will disappear from view; and fatalism in thesense of deciding not to attempt to bring about change because the attemptis bound to fail. Forgetfulness is a sufficient condition at least for a shortterm separation of “What is law?” and “What is the law?” Fatalism isa sufficient condition for separation in the medium term and, in theory,could be a permanent state. Whether it can be a permanent state in practicedepends on how much judges (and, in their different way, academics) canbear without fighting back or fleeing the field.

This is not to say that approval or disapproval of the existing boundariesis unimportant. But the question whether to adopt a fatalist position is adifferent decision from whether or not actively to approve of the existingboundaries. The balance between the two will probably differ for differentparticipants. For practising lawyers, the former will probably predominate.The client pays the lawyer to ignore the latter. For judges in the highestappellate courts, the latter might predominate. Judges in the highest courtshave a good chance of success if they decide to change the boundaries.The question is often, rather, whether they should do so or not. For others– litigants, academic commentators and lower court judges – the balancelies somewhere in-between.

The position concerning the value of law is also complex. For the mostpart one can suspend judgment on the value of law and carry on withdiscussing “What is the law?” regardless. Certainly someone who doesnot care for law could give an opinion on what the law is on a particularsubject. Even someone who does not care about the law could, in principle,be induced, perhaps by offering an attractive enough career in a large lawfirm, to give a plausible sounding legal opinion. Participants might say that“professionally” they have no view about law’s value. But one might ques-tion whether one could for long sustain a life engaged in a form of activitythat one considers to be pointless, harmful or immoral. Many people insuch a situation change their views about whether the activity is pointless,

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harmful or immoral. A few, perhaps the more courageous ones, abandonthe activity.

BOUNDARY CHALLENGES, POSITIVISM AND NATURAL LAW

By way of conclusion, we look briefly at how the boundary challengeperspective might view other ways of thinking about law and what sortof research programme it implies.

Conflating the questions “What is law?” and “What is the law?” temptssome people to claim that one has to believe that law has no “inherent”value before one can maintain that the law can be specified withoutreference to other evaluative criteria. But since the two questions arisein different contexts, there is usually no need to conflate them. “Whatis law?” only makes sense in an evaluative context, but “What is thelaw?” is a different sort of question that makes sense in other contexts,including contexts of short or medium term suspension of judgment.For other people, the same conflation has tempted them to claim thatbecause “What is law?” is inherently evaluative, “What is the law?” mustalso be inherently evaluative. This is also misleading, because a decisionnot to challenge existing boundaries is not the same as a judgment thatpresupposes such a decision.

One can see positivism as the claim that “What is law?” can neveroccur in the same context as “What is the law?” and natural law as theclaim that the contexts in which “What is the law?” occur are alwayscontexts in which “What is law?” also occurs. The boundary challengeperspective suggests that neither view is correct, but it also illustrateswhy both are attractive. It is possible to argue that when “What is law?”arises out of disappointment with the answer to “What is the law?”, theparticipants have embarked on a new and different conversation, a conver-sation concerning proposals for political action. Hart, for example, saysthat discussion of what the rule of recognition should be is “external” tothe law.48 On the other hand, whenever someone asks, “What is the law?”it is possible that the conversation will turn to proposals to challenge theexisting boundaries, so that one can argue that at least potentially “What isthe law?” always includes “What is law?”

But we gain greatly in clarity if we accept that courts might be calledupon at any time to make boundary decisions that need answers to unavoid-ably evaluative “What is law?” questions, but also that usually they arenot called upon to do so. Boundary questions are simultaneously inside

48 Ibid.


and outside the law. It is not satisfactory to treat them as exclusively legalquestions; but they can be raised, and are raised, as questions that the legalsystem has to answer. Positivism artificially counts boundary questions asexternal questions that just happen sometimes to be answered by lawyersand courts. Natural law, almost as artificially, claims that not challenging aboundary is the same as approving of a boundary. The boundary challengeperspective allows us to avoid both forms of artificiality.

The boundary challenge perspective also sets up a new and possiblyfruitful research programme. Admittedly, legal activity can carry onwithout bringing boundary challenges consciously to mind, but such chal-lenges are frequent enough and important enough that lawyers, judges andcommentators should not only know about them, but also be prepared todefend their own views on them and even consider creating new onesof their own. They are also important enough that the history and soci-ology of law could profitably concentrate their attention on them. Both thenormative and empirical aspects of boundary challenges deserve furtherinvestigation. “What is law?” is therefore perhaps not the barren questionit has for several decades been taken to be.

Clare CollegeCambridge CB2 [email protected]

Documents

On the Question, “What is Law?”