reasons of law: dworkin on the legal decision
TRANSCRIPT
1
Reasons of Law: Dworkin on the Legal Decision
Anthony R. Reeves* Department of Philosophy Binghamton University, State University of New York [email protected]
Forthcoming in Jurisprudence (January 2016)
Available online at: http://www.tandfonline.com/doi/full/10.1080/20403313.2015.1082818
In a 1965 commentary, Ronald Dworkin identified the basic question of jurisprudence as: “What,
in general, is a good reason for a decision by a court of law?”1 I argue that, over the course of
his career, Dworkin gave an essentially sound answer to this question. In fact, he gave a correct
answer to a broader question: ‘What is a good reason for a legal decision, generally?’ For
judges, officials of executive and administrative agencies, lawyers, non-governmental
organizations, and ordinary subjects acting in the variety of legal contexts, Dworkin identified
the proper basis for a legal decision, and its implications for the form of well-conducted legal
reasoning. Showing this might be thought outside the purview of a single paper given the size of
Dworkin’s corpus, and the vast critical literature it has inspired. However, I think the
accomplishment is obscured by the variety of Dworkin’s jurisprudential aims, and the
prominence of his debates with legal positivists. Dworkin’s stance on the above questions can be
characterized by two theses. I can defend his view by substantiating each. Whatever the fate of
his other philosophical views, Dworkin’s jurisprudence includes a clear-headed, though morally
challenging, understanding of the proper basis for decisions of law.
* I am grateful to Michael Giudice, Doug Husak, Luis Duarte d’Almeida, Max Pensky, Christopher Morgan-‐Knapp, Charles Goodman, Tony Preus, Nicole Hassoun, Josh Felix, and two anonymous reviewers for this journal for comments on earlier drafts of this paper. 1 Ronald Dworkin, "Does Law Have a Function? A Comment on the Two-‐Level Theory of Decision," Yale Law Journal 74 (1965): 640.
2 REASONS OF LAW
I. Introduction: To Have a Reason of Law
What is it to have a reason of law? How should legal norms be treated by the practical reason of
officials and subjects? I am interested here in addressing these two closely related questions. In
the legal philosophical literature, there is significant descriptive concern with “legal reasoning”
as it pertains to officials, and especially judges.2 Yet, there is less in the way of direct
consideration of what it is, in general, for officials to have a legal reason, and hence (i.e., in light
of the character of legal reasons) what form their legal reasoning ought generally take.3 How is
it that officials can conduct their practical reasoning well with respect to the law? Answering the
question might be thought to be primarily an issue of determining the content of an official’s
local law, for once an official discerns the valid norms of her jurisdiction, she can then simply
proceed to conduct herself accordingly. Such a view of official (or citizen) responsibility is
implausible, as I show below in reflecting on what it is to have a legal reason. The problem here
is not the now familiar one of what a legal actor should do in the face of ambiguity, vagueness,
or indeterminacy – problems frequently leading us to describe certain cases as “hard”. (A
complete account of correct legal reason should, nonetheless, shed light on the appropriate
2 See, for instance, Neil MacCormick, Rhetoric and the Rule of Law: A Theory of Legal Reasoning (New York: Oxford University Press, 2005), 1-‐31; Brian Leiter, Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal Philosophy (Oxford: Oxford University Press, 2007), 15-‐58. MacCormick’s theory does, additionally, have modest normative aims. For discussion, see Torben Spaak, "Guidance and Constraint: The Action-‐Guiding Capacity of Neil Maccormick's Theory of Legal Reasoning," Law and Philosophy 26 (2007). 3 There are, of course, exceptions, though they tend to raise the general question of what it is for an official to have a reason of law indirectly by appeal to the virtues of a certain mode of legal reasoning (e.g., the predictability afforded by formalistic reasoning) and with the operative assumption of a special obligation on the part of officials to enforce the law or accord themselves with prevailing modes of legal reasoning. For discussion, see Brian Leiter, "Heidegger and the Theory of Adjudication," Yale Law Journal 106, no. 102 (1996): 255-‐61; Anthony R. Reeves, "Do Judges Have an Obligation to Enforce the Law?: Moral Responsibility and Judicial Reasoning," Law and Philosophy 29, no. 2 (2010). Some instances of writers pushing in the direction of the general question are David Lyons, "Derivability, Defensibility, and Judicial Decisions," in Moral Aspects of Legal Theory: Essays on Law, Justice, and Political Responsibility (Cambridge: Cambridge University Press, 1993); Frederick F. Schauer, Playing by the Rules: A Philosophical Examination of Rule-‐Based Decision-‐Making in Law and in Life (Oxford: Oxford University Press, 1991); Jeffrey Brand-‐Ballard, Limits of Legality: The Ethics of Lawless Judging (New York: Oxford University Press, 2010).
3
response to legal sources when such issues arise.) Rather, the problem is with how the fact of
positive law can give rise to a reason for action at all in the circumstances of human social life.
Once we have a general view of the character of a legal reason, we can then model the basic
form of well-conducted legal reasoning.
The organization of the paper is as follows. First, I explain the two theses. Second, I
provide textual evidence, from a variety of Dworkin’s works, to show that he in fact held them,
though frequently as elements of stronger claims. Third, I argue for each thesis. My arguments
employ some ideas found in Dworkin’s writing, and they are motivated by important aspects of
his characterization of legal practice. However, they differ in form and content from Dworkin’s
own defense of the theses. Fourth, I show that together, the theses substantiate important claims
Dworkin makes about the proper character of legal reasoning. Centrally, that constructive
interpretation is the correct method for construing the requirements of law for practical reason.
Constructive interpretation describes the way to arrive at a proper decision of law.
II. The Proper Basis for Legal Decisions: Two Theses
A decision, as I will use the term, is simply a determination about how to act. Practical reason is
at least in the business of determining how we ought to decide and, hence, act. A decision of law
is a decision about what to do in view of the law. It is not an all-things-considered determination
about what to do, but an answer to the question: what does the fact of existing legal norms imply
about how I ought to act?4 Once a decision of law is made, practical reason could further decide
that one should do, all-things-considered, something else. Slightly differently, though this
formulation is provisional, a legal decision is a determination about what to do in light of a
4 Or, in terms more familiar to Dworkin’s work: ‘What ought I do in virtue of true propositions of law?’ Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986), 4.
4 REASONS OF LAW
subset of all facts: law facts. Normally, though, a decision maker will be concerned with a
smaller subset than the entire set of law facts, namely, those that appear relevant to the
circumstance.
Take some legal requirement of the form, ‘Persons A, Φ in circumstances x.’ For
instance, New York state law says (roughly): “Unless otherwise posted, no person shall drive a
vehicle in excess of fifty-five miles per hour on state highways.” This requirement obtains as a
fact of law. We might wonder what kind of fact a law fact is, and in virtue of what other facts
this particular legal fact obtains. We might agree with those legal positivists who assert that
law’s existence and content is entirely a matter of social fact.5 Or, we might hold that law facts
are a hybrid of social facts and other facts, e.g., facts about political morality or other evaluative
domains.6 Or, we can conceive of stranger views. Whatever conclusion we come to about the
nature of law, we can further wonder what decision we ought come to in light of it. I am driving
down the highway: how ought the fact of the speed limit inform my practical reason? More
broadly, what is the correct decision of law, given the array of relevant legal facts? I am
concerned with this question.
One response, here, is to reject my formulation of the above questions as conflating
separate issues. It might be said that a decision of law, strictly speaking, is simply a
determination about what is required from the standpoint of the relevant legal norms of the
jurisdiction in question. The response insists that we ought, for sake of clarity, keep distinct the
5 For example, Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979), 39-‐52. Not all legal positivists view the “social facts thesis” as positivism’s most fundamental commitment. See, for instance, Lyons, "Moral Aspects of Legal Theory," 77-‐101. Positivists are currently divided about whether it is problematic. See Kevin Toh, "An Argument against the Social Fact Thesis (and Some Additional Preliminary Steps Towards a New Conception of Legal Positivism)," Law and Philosophy 27 (2008); Barbara Baum Levenbook, "How to Hold the Social Fact Thesis: A Reply to Greenberg and Toh," Oxford Studies in Philosophy of Law 2 (2013). 6 See, for instance, Dworkin, Law's Empire, 87-‐113; Mark Greenberg, "How Facts Make Law," Legal Theory 10 (2004).
5
idea of “decision of law” from the notion of, say, “morally justified decision under law.” The
former raises issues concerning the legal practices of the community, and questions of general
jurisprudence; the latter concerns matters of political obligation and authority, and of political
morality more generally. In response, I agree that we should clearly distinguish between legal
standards and (for instance) the standards of other social practices and morality. However,
insofar as a legal decision ought reflect legal reasons, I will deny that there is an important,
meaningful sense of “correct legal decision” apart from how I describe it. Part of my contention
is that the hypothetical interlocutor is the obscurantist. I give my full response in the fourth
section, and now begin by defining the two theses.
The first thesis, stated initially, is:
Legal Reasons as Legitimacy Reasons Thesis (LRLR): Law is a reason to act pursuant to its terms if and only if it is a legitimacy reason to so act.
A “legitimacy reason” is a moral reason capable of justifying the use of political power, i.e.,
which supports the use of political power in one way or another.7 One corollary of the thesis is
7 The concept of legitimacy is used in a variety of fashions in political theory, and my use here is somewhat narrow, though it fits much existing usage. As I use it, the exercise of political power is legitimate when it is morally permissible, i.e., when it is supported by a justification showing it to be non-‐wrongful. A “legitimacy reason” is a consideration that figures into such a justification, supporting the inference that the exercise of power, on the occasion, is permissible. We find legitimacy similarly treated as a ‘permission right’ in the work of Christopher Heath Wellman, "Liberalism, Samaritanism, and Political Legitimacy," Philosophy and Public Affairs 25, no. 3 (1996): 211-‐12; Allen Buchanan, Justice, Legitimacy, and Self-‐Determination: Moral Foundations for International Law, Paperback ed. (Oxford: Oxford University Press, 2004), 233-‐60; David Estlund, Democratic Authority: A Philosophical Framework (Princeton: Princeton University Press, 2008), 41; John Rawls, Political Liberalism, Paperback ed. (New York: Columbia University Press, 1996), 216-‐20. Sometimes “legitimacy” is used to refer to the specifically procedural credentials of a political decision such that the procedure by which a decision was arrived at itself warrants acting accordingly. Jeremy Waldron, "Rights and Majorities: Rousseau Revisited," in Liberal Rights: Collected Papers 1981-‐1991 (Cambridge: Cambridge University Press, 1993), 393. My use is inclusive of this sense, but not limited to it, since I allow that substantive considerations will often render the exercise of political power permissible (how so will depend on the correct substantive account of legitimacy). Alternatively, we might use “legitimacy” to indicate a certain normative standing in a political order that accords specific privileges. As examples of this type of usage, we might say that state X is legitimate, and mean that it is prima facie immune from justified interference within some scope of its affairs, or that it deserves certain institutional recognition in the international order. William A. Edmundson, Three Anarchical Fallacies: An Essay on Political Authority (Cambridge: Cambridge University Press, 1998), 35-‐70; Buchanan, Justice, Legitimacy, and Self-‐Determination: Moral Foundations for International Law, 261-‐88. Also, we might use “legitimacy” to refer to a larger package of
6 REASONS OF LAW
that all legal reasons are legitimacy reasons (though, not all legitimacy reasons are legally
registered). The fact of law only counts as a reason in favor of some course of action if it is also
a consideration of the sort that is capable of supporting the use of political power.
To illustrate LRLR, take a legal requirement of the above form, ‘Persons A, Φ in
circumstances x,’ where you are an A in x. Call the legal requirement “R.” None of the
following, if true, would show that R is a reason to Φ: the fact that you promised a friend to Φ,
that morality independently requires you to Φ, or that (again, independently of the law) Φ-ing
tends to advance your personal interests. Each would only show that you have reason to Φ, not
that R itself is such a reason. LRLR concerns when the legal fact of R can be a reason to Φ.
The thesis first denies that considerations incapable of justifying political power could render R a
reason to Φ. For instance, if Rawls’s “liberal principle of legitimacy” is the correct criterion of
legitimacy,8 then LRLR states that none of the following, if true, would show that R is a reason
to Φ: God has ordained that subjects obey laws produced by the procedure that legislated R, R’s
legality is beneficial to your family and friends, or that an esoteric moral code would recommend
R as a law for the circumstances in question. It might be thought that (if true) these are reasons,
moral powers than a mere permission right, such as a special right on the part of a state to create and enforce moral duties for its subjects. A. John Simmons, "Justification and Legitimacy," Ethics 109, no. 4 (1999). We need not see these different uses as competitive. Rather than seeing any one of these as essentially correct, we should view their propriety as depending upon the theoretical aims of an account. So long as an approach is explicit about the sense in question, it can deploy “legitimacy” however best illuminates what it seeks to illuminate. I will mention that separating permissible exercise from the matter of the obligations of the subject of enforcement has been with us since at least Hobbes. For discussion, see Susanne Sreedhar, Hobbes on Resistance: Defying the Leviathan (New York: Cambridge University Press, 2010), 89-‐104. Finally, I will not offer a substantive account of legitimacy, i.e., a theory as to what reasons are (in fact) capable of legitimating political power. This is appropriate since my aim is to defend a view regarding the role of such considerations for proper legal reasoning that holds irrespective of which substantive theory is correct. 8 “[O]ur exercise of political power is proper and hence justifiable only when it is exercised in accordance with a constitution the essentials of which all citizens may reasonably be expected to endorse in the light of principles and ideals acceptable to them as reasonable and rational.” Rawls, Political Liberalism, 217. Rawls limits the principle to democratic societies, but that need not detain us here.
7
and that R at least triggers them,9 and thus that R is a reason to Φ in view of them, even if they
are incapable of justifying political power. LRLR denies this, insisting that the legal fact of R
would not be shown to be a reason to Φ on the basis of such considerations. The thesis second
states that if legitimacy reasons support R (as a legal requirement) in the actual circumstances,
then R is a reason to Φ. For example, if (1) R restricts certain freedoms for the sake of public
health, (2) public health of the sort in question is within the proper purview of political
governance, (3) the freedoms in question are legitimately curtailed or modified for the sake of
that end, and (4) the legal fact of R makes it the case that Φ-ing promotes that end, then R is a
legal reason to Φ. In that case, R itself is a reason to Φ (absent R, there are no public health
reasons to Φ), and it is a legitimacy reason.10 LRLR does not deny that an agent can have
legitimacy reasons in a circumstance the possession of which is not a function of legal facts. It
says, rather, that if a legal fact is a legal reason for someone, it is also a legitimacy reason, i.e., a
consideration capable of playing a justificatory role in showing the person’s exercise of political
power to be permissible.
The second thesis, stated initially, is:
Legal Decision Thesis (LD): A decision of law ought to be based exclusively on legal reasons. A decision of law should serve the weightiest relevant legal reasons.
The legal decision thesis concerns the character of proper legal reason. For a legal decision, it
defines the type of considerations on which practical reason ought to rely, how legal norms
should be regarded by practical reason, and how such reason ought move to a decision. As noted
9 In the straightforward sense described by Enoch. See David Enoch, "Reason-‐Giving and the Law," Oxford Studies in Philosophy of Law 1 (2011). 10 We might think of legitimacy reasons as a subclass of moral reasons and, according to LRLR, legal reasons as a further subclass of legitimacy reasons. Legal reasons are those legitimacy reasons triggered by legal facts on a particular occasion. According to LRLR, legal reasons do not comprise a sphere of normativity apart from legitimacy, though the sphere of legitimacy reasons is normally larger than the sphere of legal reasons. Hence, LRLR does not deny that an agent can have legitimacy reasons apart from legal reasons.
8 REASONS OF LAW
above, a decision of law is a determination about what to do in light of the relevant legal facts. 11
LD describes which facts and norms legal reasoning may deploy, and how it ought to deploy
them, to arrive at such a determination.
III. Dworkin on LRLR and LD
I articulate the theses in language somewhat unfamiliar to Dworkin’s own writing, but LRLR
and LD are central features of his jurisprudence capable of explaining his commitment to some
of his most distinctive claims about legal disagreement and reasoning. Though my aims in the
paper are not primarily exegetical, I here provide textual evidence that he held the theses. The
role LRLR and LD play in grounding distinctive features of Dworkin’s jurisprudence will
become evident later, after I defend them.
Dworkin’s early movement in the direction of both theses is visible in a 1963 article.12
Dworkin argues that in hard cases, the absence of a governing legal rule does not imply that a
judge is not legally bound by established principles or policies, which function qualitatively
differently than rules in the logic of decision. Whereas a rule simply applies or not, relevant
legal principles or policies give reasons of various weight that the judge must discern and
adjudicate to arrive at a correct legal decision. Dworkin continues:
If the judge were free to adopt his personal preferences as legal standards, then indeed his decisions would be chosen. But he is not. He is subject to the overriding principle that good reasons for judicial decision must be public standards rather than private prejudice. And he is subject to principles stipulating how such standards shall be established and what judicial use shall be made of them.13
The non-rule legal standards have various sources, including precedent and legislation. 11 It is worth restating that the legal decision is not an all-‐things-‐considered judgment about what to do – it is narrow in the sense just described. After arriving at a proper legal decision, an agent could (perhaps on the basis of non-‐legally registered legitimacy considerations) responsibly decide to act otherwise, all-‐things-‐considered. LD does not deny this. 12 Ronald Dworkin, "Judicial Discretion," Journal of Philosophy 60 (1963). 13 Ibid., 634-‐35. His emphasis, here and after.
9
But [the judge] must sometimes recognize a third source: judgments of the community at large or some identifiable segment thereof. The court refers to such judgments when it rejects a particular result or rule as unjust, as well as when it more explicitly invokes the ideals of the society.14
When these judgments are at issue, the judge “is no more entitled to choose an answer on private
grounds here than at any earlier or later point in his reasoning; he is expected here as there to
justify his decision in terms of what he takes to be the most fundamental community conceptions
of social or political justice.”15 To summarize the salient points, all good reasons for judicial
decisions are public standards (as opposed to matters of private discretion), and all relevant such
legal standards are reasons. In fact, recognized public standards of justice can override an
applicable legal rule. Presumably, the difference between public and private standards matters
for the judicial office because it marks a difference in the considerations capable of rendering
legitimate the exercise of political power. Hence, saying the above is close to endorsing LRLR
(at least for the courtroom), though it contains additional suggestions about the character of
legitimacy and the forms legal standards can take. Moreover, Dworkin’s emphasis that judges
must justify their decisions narrowly in terms of relevant public legal standards strongly suggests
LD.
More than a decade later, Dworkin argues that judicial decisions ought (and frequently
do) enforce existing political rights. The “institutional history acts not as a constraint on the
political judgment of judges but as an ingredient of that judgment, because institutional history is
part of the background that any plausible judgment about the rights of an individual must
accommodate.”16 Slightly differently, the institutional practice matters to the judge because it
speaks to the political rights people in fact have, and people deserve to have their political rights
enforced. Dworkin continues:
14 Ibid., 635. 15 Ibid., 636. 16 Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1977), 87.
10
REASONS OF LAW
Judges, like all political officials, are subject to the doctrine of political responsibility. The doctrine states, in its most general form, that political officials must make only such political decisions as they can justify within a political theory that also justifies the other decisions they propose to make.17
Aside from urging an interpretive consistency that foreshadows his later “law as integrity,”
Dworkin’s doctrine appears to state that the only considerations that ought matter to officials are
those recognized by a political morality as capable of justifying the exercise of political power.
Again, although Dworkin defends several additional views in the article, we find him here
expressing ideas quite similar to LRLR and LD.
In subsequent years, Dworkin’s jurisprudential views evolve in important respects, but
his commitment to LRLR and LD remain constant.18 In Law’s Empire, Dworkin contends:
[T]he most abstract and fundamental point of legal practice is to guide and constrain the power of government in the following way. Law insists that force not be used or withheld, no matter how useful that would be to ends in view, no matter how beneficial or noble these ends, except as licensed or required by individual rights and responsibilities flowing from past political decisions about when collective force is justified.19
The book’s theory has it that any interpretation of local law, for the purpose of deciding under it,
must employ (even if implicitly) some moral political account of what justifies this insistence.
The successful account of legitimacy will settle which rights and responsibilities “flow from”
past political decisions.20 Even if law’s basic claim fails, the account of legitimacy that
demonstrated this would then, on Dworkin’s view, settle how legal participants should construe
legal practice in their reasoning.21 As readers of Law’s Empire know, it attempts to do much
more than explicate LRLR and LD, but the book’s basic commitments embody the theses.
17 Ibid. 18 A commitment expressed in various places in the years intervening Taking Rights Seriously and Law’s Empire. See, for instance, ""Natural" Law Revisited," University of Florida Law Review 34, no. 2 (1982): 165-‐66, 70-‐73, 83-‐87; "Law as Interpretation," Texas Law Review 60 (1982): 542-‐46; A Matter of Principle (Cambridge, MA: Harvard University Press, 1985), 143-‐44. 19 Law's Empire, 93. 20 Ibid., 45-‐101. 21 Ibid., 151-‐75.
11
Dworkin’s later work reaffirms these basic commitments,22 though often while additionally
defending substantive views about political legitimacy, rights, the nature of legal facts, and the
content of law.
IV. Defense of the Theses
LRLR and LD are core and long-standing commitments of Dworkin’s jurisprudence. But, so
what? And why should we accept them? I answer the former in the next section, and the latter
here. LRLR states that law is a reason to act pursuant to it if and only if it is a legitimacy reason
to so act. Its defense relies on three ideas. First, the exercise of political power requires
legitimacy. Perhaps innocuous and almost platitudinous, but the idea does say that it is wrongful
to exercise political power in a way that cannot be justified. On any particular occasion, where
the exercise of power is at stake, one can go wrong, by opting in a manner inadequately
supported by justificatory reasons. In doing so, one will have acted illegitimately, i.e.,
impermissibly with respect to the specific issue of use of political power.
I use “political power” in a somewhat broad sense. To possess political power is to have
the ability to affect the interests and aims of others via an interactive environment of concern to
multiple interests and aims. To exercise political power is to act in such an environment in a
manner that affects the interests and aims of at least one other person. It is political in the sense
that it concerns others’ interests and aims in a context of interaction, and it is power in the sense
that it is actual capacity to affect. This might be thought an overly capacious use of the concept
of political power. Often we think of such power narrowly in terms of institutional policy,
22 See, for instance, Freedom's Law: The Moral Reading of the American Constitution (Cambridge, MA: Harvard University Press, 1996), 7-‐12; Justice in Robes (Cambridge, MA: Harvard University Press, 2006), 1-‐21; Justice for Hedgehogs (Cambridge, MA: Harvard University Press, 2011), 400-‐15; "A New Philosophy for International Law," Philosophy & Public Affairs 41, no. 1 (2013): 11-‐13.
12
REASONS OF LAW
official decision-making, or other activities of governance, and this definition includes the
mundane interactions of private individuals outside of overtly institutional settings. Many
ordinary interactions of neighbors, classmates, family members, fellow bus-riders, workplace
associates, and the like, count here as exercises of political power. I think this is appropriate for
present purposes. First, our aim here is to understand how to reason with positive law in the
various contexts of social life, so we need (though, this is to point to the next idea supporting
LRLR) an idea sufficiently broad in scope to plausibly encompass law’s doings in social life.
Law certainly concerns itself with official conduct, but it is also intimately involved with the
plethora of small- and medium-scale, unofficial activities. It purports to establish the contours of
property (and hence, for instance, what counts as trespass), the level of care owed to others in
everyday interactive conduct, what counts as a punishable infringement of another’s bodily
integrity, etc. Law concerns itself with both conspicuous and pedestrian uses of power. How
should law inform practical reason? The theses here seek to answer this in a general way, and
thus we need a broad understanding of political power. Second, independent of present
theoretical aims, understanding “political power” in such a broad fashion is credible. Unless we
have some special theoretical interest in governance, we should recognize that small-scale
exercises of power require legitimacy. If I carry dangerous substances aboard the bus or
discharge waste on my neighbor’s land, I wrong others by (at least) exercising my effective
discretion, i.e., my power in the interactive environment, impermissibly. This is just how
illegitimacy is understood here. We have a concept, then, that is suited to the inquiry, and
independently sensible. Law involves itself in interactive contexts large and small, and the
exercise of power in all such contexts (the first idea asserts) requires legitimacy.
13
Second, law publicly regulates the use of political power,23 via at least primary and
secondary rules, and perhaps by other kinds of standards (e.g., principles) depending on the
correct view of what can count as a legal standard. This statement is primarily empirical and
descriptive, rather than conceptual or normative. Whatever law is precisely, and however it
ought conduct itself, where it exists (i.e., where there is a well-functioning legal system), it is
normally regulating the exercise of political power through publicly recognized standards, i.e.,
standards seen by some persons as setting the terms of proper social conduct. However, the
scope of ‘the public’ can vary for any given standard. Nearly all theories of positive law have it
that actual recognition figure, in some crucial way, to legality, such that legality can then explain
the factual ability of legal institutions to set standards that regulate social life.24 Perhaps law
does things beside regulate (e.g., it may have expressive functions), but it is almost always
setting a standard for the exercise of political power, effective (if it is) in view of some type of
common recognition. Relatedly, it is frequently de facto ultimate, in the sense that it is regarded
as the final arbiter (where it, in fact, regulates) of how to deploy political power. Law’s
recognitionally effective and frequently ultimate regulation of political power indicates that the
central moral questions about it are ones of legitimacy, of whether it organizes or deploys power
legitimately. Also, where there is an effective legal system, law is the salient regulator of
23 “Public” refers here to the common recognition required (at some level) for legal standards to regulate behavior (qua legal standards). Both public and private law are included. Liability rules in tort law, for instance, regulate political power as much as criminal prohibitions, and both are effectively operative because of their common recognition, either direct or indirect (e.g., certification by a rule of recognition), by some persons. 24 I do not know of any theorist, in recent analytical jurisprudence, who denies this. On Hart’s view, for instance, the crucial recognition occurs at the level of officials’ acceptance of a rule of recognition, a normally complex standard that “will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts.” H. L. A. Hart, The Concept of Law, 3rd ed. (Oxford: Oxford University Press, 2012), 94. This acceptance is what, fundamentally, enables a legal system to address the problems of social order faced by a pre-‐legal society. On Dworkin’s view, a necessary condition of a legal system is the presence of significant (though not uniform) pre-‐interpretive consensus in a legal community on a large array of standards seen to properly regulate social life. Dworkin, Law's Empire, 65-‐68, 87-‐101.
14
REASONS OF LAW
political power in large domains of activity. Questions about how to act legitimately will
frequently have to be, in one way or another, concerned with the state of law. Why ought the
judge, administrator, executive official, officer, citizen, etc., care about the state of positive law?
Because of its pertinence to what we owe each other with respect to the exercise of political
power. 25 Practical reason ought care about law centrally in virtue of its salience to practical
reason’s proper concern with legitimacy, and legitimacy is the primary type of moral issue raised
by law’s existence. The set of facts constitutive of the law are salient to practical reason
primarily because of their relevance to how to exercise political power legitimately.
Here is a worry.26 I frame the two ideas above to say that we all have reasons (whether
acting as officials, or ordinary persons in pedestrian ways) to exercise power (even if modest)
legitimately, and that an agent’s proper interest in law is a feature of law’s regulation of political
power (and hence, its relevance to a particular agent’s legitimate exercise of it). However, if I
25 Why think that law is a main regulator of political power? Non-‐legal conventions, for instance, frequently regulate political power, as might moral norms or the accepted morality of a group. Indeed, I agree that non-‐legal norms can and frequently do regulate power, and even that, in some social circumstances, they can be the dominant regulators. Here the claim is not conceptual, that a necessary condition for a legal system is that it be the primary regulator of political power. Rather, it is based in the observation that in modern societies with well-‐functioning legal systems, law pervasively (though, certainly not to the full exclusion of other norms) governs social life. It effectively, as a matter of social fact, controls power. To illustrate, constitutional law governs the organization and powers of central political institutions, the private law of torts, contract, and property organize and govern the everyday activities of individuals and firms, criminal law helps control the sanctions organized political society imposes on conduct, and administrative and regulatory legal regimes regulate health, food, land use, safety, the environment, etc. The extent to which law governs (compared to other norms) will vary by social circumstance and by degree. This reality the present points are wholly comfortable with. What is important here is that first, law’s effective regulation is sufficiently pervasive that it engenders a proper interest on the part of practical reason (given the concern to exercise power legitimately) in the state of positive law, and second, positive law is standardly in the business of regulating political power such that practical reason’s primary interest in it is one of legitimacy. These obtain in large arenas of contemporary human social life. To the extent law fails to effectively regulate a social venue, practical reason’s legitimacy-‐based interest in positive law is appropriately diminished – which is to say that practical reason is correctly less-‐concerned with legal reasoning, as it will have less to do with acting legitimately. Matters are slightly complicated here, though, as responsible agents must be concerned with the prospective effects of their actions on how political power is legally governed. See Anthony R. Reeves, "The Binding Force of Nascent Norms of International Law," Canadian Journal of Law and Jurisprudence 27, no. 1 (2014). 26 I am grateful to an anonymous reviewer for pressing me to clarify and defend my use of “political power,” and raising this objection specifically.
15
understand political power so broadly, then it looks like what is important are just general moral
rules governing interaction, leaving it mysterious what legal standards can add to people’s
reasons. As an agent seeking to act legitimately, why care about the law (as opposed to merely
the morality of legitimacy)? Indeed, as I say earlier, for law to count as a reason, it (i.e., the
standard itself) must be a reason. I here mention several ways law can contribute to people’s
reasons through the effective regulation of a social environment.27 First, effective law
sometimes coordinates behavior to achieve morally desirable results. In the public health
example given earlier, but for people’s legally coordinated behavior, an agent would not have
reason to act as the law prescribes. The law here is, therefore, a reason (if instrumentally) for
compliance. Its existence contributes to people’s reasons to act in certain ways. Similar
examples could be adduced with respect to, for instance, traffic, property, communications, and
the like.28 Second, law can be the result of a procedure capable of legitimizing political power.
For instance, a legislature’s democratic credentials, or an administrative agency’s privileged
epistemic standing, may confer legitimacy on a course of action by legalizing a standard,
legitimacy that would not obtain for the course of action absent the procedure’s legislation.
Third, the legality of a penal standard may supply it with a publicity that warrants its
enforcement. It may be independently immoral to engage in a certain type of fraud, but if a
polity has not criminalized the behavior, the legitimacy of punishing can be doubtful. The penal
standard, with its explicitly identified penalties, supplies prosecutors, judges, and other officials
27 I discuss at some length how law can contribute to people’s reasons, and serve (thereby) as a practical authority, at Anthony R. Reeves, "Practical Reason and Legality: Instrumental Political Authority without Exclusion," Law and Philosophy Forthcoming (2015). 28 Which is not to say that coordination is the only issue of governance pertinent to these domains. It is one issue, and one way socially effective regulation can contribute to reasons.
16
REASONS OF LAW
reason to enforce accordingly (including sentencing in accordance with the standard).29 The list
here is not exhaustive, and each of the types of cases just mentioned raises peculiar and
interesting issues. Yet, the examples show that, even defining political power as broadly as I
have, effective law regularly contributes to our reasons for action, the topic of the third idea.
The third idea concerns what it means to be a reason for action. A fact is a reason for
action if and only if it plays a certain justificatory role for practical reason. Namely, it performs
as a consideration in favor of a course of action. We could ask theoretical questions about the
nature of reasons, but it is doubtful that any substantive view would be permitted to conflict with
this role. Rather, a desideratum of a successful account is that it explain or cohere with this role.
A reason, in this justificatory sense, is different from explanatory reasons, both in the sense of
what a subject took to be her reasons in a circumstance, and what causally explains her action. I
also assume that an agent’s beliefs about justificatory reasons can be mistaken.
Take these ideas together. The fact of law is only a reason for what it requires if it plays
a justificatory role in favor of the course of action. Further, the fact of law will normally matter
to practical reason in virtue of its salience to the exercise of political power. Law can only
perform as a consideration in favor of the exercise of political power if it is a reason of the
proper type, i.e., a reason that is capable of justifying political power. Hence, all legal reasons
are legitimacy reasons. Also, if law is a legitimacy reason, it favors a course of action,30 and we
get the biconditional of LRLR: law is reason to act pursuant to its terms if and only if it is a
legitimacy reason.
Individually, the above three ideas are not, I take it, mind blowing. However, these
premises together imply LRLR, and along with LD, they imply that Dworkin was correct about 29 Of course, not all penal standards are legitimate, or legitimately enforced. The example is only intended to illustrate how law can contribute to reasons people have. 30 Against the background of all additional other-‐affecting actions/inactions available to the agent.
17
the proper structure of legal reasoning. The legal decision thesis states that a decision of law
ought to be based exclusively on legal reasons. The basic idea is simply that we have a
responsibility to avoid exercising political power irresponsibly. This might be thought to pertain
primarily to adjudicatory officials, like judges, but (as previously mentioned) it is relevant to all
persons participating in social life: judges, legislators, executive and administrative agents,
police officers, immigration officials, ordinary subjects. I drive down the road, enter others’
property, transact in the market, engage in activities that pose risks to others. In doing these
things I exercise power in an interactive environment that, consequently, can affect others’
interests in various ways. I can (though need not) drive recklessly, vandalize property, withhold
information about a product for sale, and use dangerous pesticides in my yard. I can, as an
ordinary subject of law, wrong others by exercising my effective discretion inappropriately.
This kind of wronging is more apparent in official practice: judges deciding what counts as
admissible evidence, juries deciding whether an act amounts to negligence, administrative
officials defining regulatory rules, immigration officials deciding whether to process violations,
etc. Here, officials have the opportunity to visibly exercise their effective discretion in a way
that wrongs affected parties. No less, political power is at issue at the point of compliance, as
well as administration.
Given the general responsibility to exercise political power appropriately, and the fact
that an effective legal system is the centrally salient regulator of political power, subjects need to
answer this question: what, in virtue of the law, should I do? What does the fact of law require
of me? Call a judgment attempting to answer this question the legal decision, as it concerns what
the law actually requires of the subject. It is a determination by practical reason about what to do
in light of a subset of facts: law facts pertinent to the choice situation. Given that what motivates
18
REASONS OF LAW
the question is a concern with the legitimate exercise of political power, subjects should only rely
on legal reasons when seeking to answer it. Moreover, in moving to legal judgment or decision,
one should obviously be moved by the weightiest legal reasons. LD is true. An agent arrives at
a correct legal decision when her practical reason weights, and responds appropriately to, the
relevant legal reasons. Since all legal reasons are legitimacy reasons, this is an endeavor of
moral discernment.
Two objections stand out here. First, law clearly supplies compliance reasons other than
legitimacy reasons. For example, it can create prudential reasons for compliance, even if
illegitimately. Laws restricting religious practices without compelling justification are
illegitimate, but the penalties attaching to noncompliance certainly give one reasons of prudence
to comply. Relatedly, why not think that law can trigger all manner of reasons? Reasons of
friendship, familial relations, or those pertaining to a religious ideal may not always be relevant
to legitimacy (in the sense explained above), but certainly law could trigger them. A person’s
religion may require that he render unto Caesar his due, and tax law may facilitate that very act,
so the fact of tax law is, in this case, a private religious reason to pay taxes pursuant to its terms.
LRLR, then, is false.
In response, when it comes to law, legitimacy reasons always dominate. Other reasons
are constrained to operate within the frame of what legitimacy reasons determine as permissible.
Consider, first, reasons of prudence. On an occasion, it might be prudent for me to steal
another’s legitimate holdings, or withhold information about the functionality of product for sale.
On this occasion, my reasons of prudence are largely disabled by legitimacy reasons. In
deciding whether or not to steal, ordinary prudential reasons ought not matter – the matter is
settled by considerations of legitimacy. In deciding how to sell my product, ordinary prudential
19
reasons certainly matter, but legitimacy constrains the scope of my discretion such that these
reasons only operate where the legitimacy reasons permit them. I can permissibly use various
marketing strategies (and here I have prudential reason to some rather than others), but I would
wrong others by withholding certain information, and here my prudential interests do not
count.31 Of course, in certain circumstances, my prudential interests may be of such a character
that I can transgress these standards. Perhaps I am starving, and must steal to survive. Here,
though, the interest in question is likely to be recognized by legitimacy as deserving especially
strong consideration. I may transgress another’s holdings because, from the point of view of
legitimacy, the interest in question competes successfully against the proprietary interest.
The religious prohibition, then, certainly creates prudential reasons for compliance, but
only insofar as legitimacy recognizes the threatened interests as permissibly defensible by the
subject. Protecting oneself from imprisonment or loss of property certainly appears legitimate
here, especially given the illegitimacy of the prohibition – there are no competing legitimacy
concerns to disable otherwise legitimate interests. To assist intuition, consider a judge faced
with enforcing a plainly illegitimate and wrongful law, e.g., a fugitive slave act. Perhaps the
judge will lose her position, suffer financial or reputational loss, or even endure a short period of
imprisonment if she refuses to enforce. To a large extent, these narrow prudential considerations
simply ought not matter to the judge in the exercise of her office. She is deploying political
power, and this is the dominant concern.32 The point at, and way in, which prudential
31 The sense in which the reasons are disabled hardly matters here, or for LRLR. Perhaps legitimacy reasons always outweigh the other reasons in question, or perhaps those other reasons are preempted. In any case, practical reason can disregard ordinary prudential reasons for the purposes of arriving at a decision. Or, insofar as legitimacy recognizes some class of ordinary private interests, the role they play in practical reason is circumscribed by legitimacy: it defines their permissible role in practical reason. 32 She might resign, as well. However, this is beside the point here. The issue is what can permit law to be a reason for enforcing or complying with it. The judge’s narrow prudential reasons here do not count as reasons for enforcement.
20
REASONS OF LAW
considerations come to matter is precisely where and how legitimacy says so. Similarly, for the
average subject of law, the extent to and way in which he can treat his interests as reasons in the
common interactive environment is settled by legitimacy. Thus, the prudential reasons generated
by legal sanctions count for responsible practical reason only so far as legitimacy recognizes
them. Thus, law does not supply non-legitimacy prudential reasons. Or, insofar as it does, they
are relevant to practical reason only so far as legitimacy permits them to operate. On this latter
option, LRLR is not, strictly speaking, true. Yet, practical reason ought treat it as such – it
would make no difference to well-conducted practical reason for it to hold a more nuanced thesis
about the reasons of law. All this holds, in an identical way, for private reasons of other sorts.
Reasons of religious conviction, for instance, are similarly constrained by legitimacy. An
expression may be regarded by a practitioner as profane and, from view of the practitioner’s
religion, properly censorable. Yet, so far as the type of expression is protected by legitimacy
reasons, such that it is illegitimate to interfere with it, the religious reasons must surrender. Such
reasons are controlled by legitimacy, in the sense that legitimacy defines the theater for their
acceptable operation. It would be wrong for an official to directly censor, or set aside laws
effectively facilitating the protection of, the type of expression on the basis of these reasons, or
for a private individuals to create an environment where others are involuntarily insecure in the
capacity to express freely. In the context of the practitioner’s voluntary association, however,
legitimacy allows the reasons of conviction greater latitude.33
33 This example relies on modest assumptions about the correct substantive account of legitimacy, i.e., on the correct account of the moral grounds of permissible exercise of political power. For instance, that it is illegitimate to forcibly constrain some expressions in view of their mere offensiveness to religious adherents. To substantiate the assumption, we require a moral political theory of legitimacy. The central point here, though, is about the role legitimacy plays in well-‐conducted practical deliberations. The soundness of LRLR depends upon this role, not any particular substantive theory of legitimacy.
21
The second objection was referenced earlier. It says that there is a sense of “legal
reason” that pertains not to what anyone has reason to do all things considered, but to what
legally speaking, or from the point of view of law, there is reason to do. In response, perhaps
saying “You have legal reason to Φ” is one loose way of indicating that a valid legal standard
demands that I Φ in the circumstances, but it is hard to see how it is theoretically useful way of
putting the point. In fact, if anything more is meant than a bare reference to an applicable legal
standard, the bald statement, “You have legal reason to Φ”, is misleading – unless it be given the
meaning I suggest. If the statement is meant to indicate that some people take the fact of the
standard to be a reason for me, because they take (for instance) the internal point of view with
respect to legal standards,34 then it has merely told us about those people’s beliefs about the
reasons I have. If the statement is intended to indicate that other people take the legality of the
standard as a reason to act pursuant to it, and thereby reason and act accordingly, then it offers an
explanation rather than a normative assertion about my reasons. Such a statement would confuse
explanatory and justificatory reasons if it were also intended as illuminating my normative
situation. Finally, if the statement “I have legal reason to Φ” is meant to refer to some other kind
of reasons applicable to me, then we are faced with an obscure notion of reason. A reason for
action is a consideration in favor of some course of action.
We can be far more direct. To say “You have legal reason to Φ” is to say that the fact of
law is a reason for me to Φ. LRLR treats the statement in this straightforward way. Moreover,
when not engaged in explanation, we normally use the language of reasons to point to facts that
ought matter in someone’s deliberations. If I query as to the right course of action, and you tell
me that I have legal reason to Φ, then we would hardly be having a conversation if you merely
34 Hart, The Concept of Law, 88-‐91. For discussion, see Scott J. Shapiro, "What Is the Internal Point of View?," Fordham Law Review 75, no. 3 (2006).
22
REASONS OF LAW
meant to refer to the fact of a legal standard requiring as much. We would only be having a
conversation if you also intended that the legality of the standard ought matter to my practical
deliberations. Or, if unprompted, you tell me that I have legal reason to Φ, then my natural
expectation should be that you are telling me something that I ought to care about. If you tell
friends openly committed to remaining childless that they have family reasons to purchase a
house, and upon inquiry, you reference the greater ease of raising children in such a house, then
your friends are rightly irritated. Your use of the language of reasons was misleading. There is
little to recommend, then, to even the casual and loose way of referring to valid legal standards
in terms of the possession of legal reasons.
Moreover, talk of a “correct legal decision” or a “correct decision, as a matter of law”
apart from the reasons for action that legal standards give rise to is similarly obscure. A decision
is an act of practical reason, and practical reason acts correctly when it responds appropriately to
its reasons. If practical reason abides by legal standards as (to put it loosely) those standards
understand themselves, but without the support of actual legal reasons, then it has failed at the
endeavor of arriving at a correct decision pertaining to law facts. It is not, in any clear sense, a
correct decision. It would be a correct legal decision if practical reason treated legal standards in
accordance with the reasons for action they give rise to. What else could we mean while
retaining fidelity to the idea of decision? Perhaps this: when we speak of “correct legal
decision,” we speak as if law is all the reason it claims, and are indicating what a proper decision
would look like if this were true. This removes some obscurity, but has the effect of making the
language of legal decision not very useful outside the hypothetical enterprise. It renders the idea
23
of a correct legal decision (at best) indirectly relevant for legal reasoning and decision-making. 35
That is surely costly. Also, insofar as such usage invites treating law in practical reason in a way
uninformed by political legitimacy, it lends a presumptive, unearned impression of permissibility
to obedience. We can talk about what the law purports to require without the language of legal
decision. We can simply say that it is the law that I do such and such. This properly leaves open
what I ought to do with that fact, without theoretical cost. I do not mean to press a verbal
dispute, but the concepts of reason-possession and decision are most at home in discussions of
practical reason. Since the task here is to identify the proper mode of legal reasoning, it is
appropriate to regiment our use of the relevant concepts.
V. Legal Reasoning
The upshot of LRLR and LD for subjects of law, from high executive officials to ordinary
citizens, is that they ought to treat law constructively in their practical reason. I argue in this
section that legal reasoning, reasoning about what to do in virtue of applicable legal standards,
ought to have the form of constructive interpretation. With respect to local law, Dworkin offered
constructive interpretation as both a theory of legal content (i.e., a theory of what determines the
norms constitutive of local law) and a theory of proper legal reasoning. On the argument here, I
defend Dworkin on the latter score alone: I show that constructive interpretation describes the
basic mode of proper legal reason whatever its success as an account of legal content. First,
though, we should get clear on Dworkin’s own use of “constructive interpretation.”
“[C]onstructive interpretation is a matter of imposing purpose on an object or practice in
order to make of it the best possible example of the form or genre to which it is taken to 35 Notice that a consequence of the as-‐if use of “legal decision” is that once we determine what is the correct legal decision (on its terms), we are in no position to draw any practical inferences with respect to the law – i.e., we are uninformed about how to decide under law. This is a strange outcome for the concept of correct legal decision.
24
REASONS OF LAW
belong.”36 In general, constructive interpretation of an object requires a sense of its general kind
for the sake of construing the object (constrained by the object’s evident characteristics) as the
best possible instance of the kind. Constructively interpreted, the object is the best it can be
according to relevant kind-values. Dworkin contends that, successfully performed, constructive
interpretation offers a more complete picture (compared to our pre-interpretive understanding of
the object) of the object and its content, i.e., its characteristics and meaning. In properly
interpreting a novel, I try to understand it the best I can as a novel, and this will employ my
sense of what makes novels valuable – the aesthetic (and perhaps other) values pertinent to the
genre. This will tell me which novel to construct from the text, and the themes, plots, settings,
character motivations, and events to impute to the text as part of its meaning.37 Similarly,
according to Dworkin, social practices ought be interpreted constructively. “A participant
interpreting a social practice…proposes value for the practice by describing some scheme of
interests or goals or principles the can be taken to serve or express or exemplify.”38
Whereas in interpreting an artistic object, I will normally be employing aesthetic values, in
constructively interpreting a social practice I will standardly be employing moral or political
values. For instance, to interpret “courtesy,” I must show why courtesy-practices are valuable as
a social form, i.e., as a practice regulating our interactions and conduct, and make it into the best
it can be as a social practice. Standardly, this is to posit moral value onto it. Once I have an
attractive interpretation on the table that more or less fits the practice, e.g., that courtesy is a
matter of showing respect to moral equals, I can then detail the practices characteristics and
content – including, especially, the norms that are part of the practice. I can construct, from the
various courtesy practices I pre-interpretively ascribed to the social practice, a conception of 36 Dworkin, Law's Empire, 52. 37 Ibid., 53-‐62. 38 Ibid., 52.
25
what courtesy demands based on what best serves ‘evince respect for moral equals.’ The
interpretation can be revisionary, excluding practices I earlier regarded as courteous (as they may
not be up to the task of the point of the practice), and including concrete requirements previously
unrecognized (because they are particularly up to the task of the practice). The value of the
practice gives it determinate normative content.39
Hence, Dworkin continues, to constructively interpret law, we must posit some value to
the practice that enables us to discern its content. Law is in the force business – it is normally
about regulating political power in accordance with past political decisions – and we are
therefore faced with the task of justifying this practice, i.e., we are faced with articulating the
practice’s value in terms of legitimacy. What is the point of legal practice, and what justifies its
regulation of political life? With an answer in hand, we can then move to local law to discern
what it requires. Slightly differently, we are in a position to construct legal meaning (especially,
again, what norms are genuinely constitutive of the practice) from the legal practices of a
jurisdiction. Elements recognized by the justifying rationales will be construed in a way that
serves those rationales best, and elements wholly un-accommodated will be treated as not
genuinely law. The construction determines legal content. It tells us both the precise
characteristics of legal norms, and which norms are properly legal.40
Dworkin’s argument for constructive interpretation in law is (on my reading) complex,
and I have barely gestured at part of it above. My aim is to illustrate the idea. I will not
comment on the success of his actual arguments, insofar as they depart from my own.41 The core
idea I want is this: in order to understand what law factually requires of a subject, one must
39 Ibid., 62-‐72. 40 Ibid., 87-‐101. 41 For one prominent critical treatment, see Andrei Marmor, Interpretation and Legal Theory, 2nd ed. (Portland: Hart Publishing, 2005), 1-‐45.
26
REASONS OF LAW
construe legal practice in terms of a legitimacy-based rationale that renders legal norms the best
they can be, as regulators of political power, in the circumstance.42 Aside from treating the
proper mode of legal reasoning as a direct engagement with political legitimacy, there are two
additional aspects of the approach to legal reasoning worth marking as distinctive. First, it
permits (in principle) surprising omissions. Legal norms pre-interpretively understood to bind
may be rendered null, from the view of practical reason, if they cannot be supported by a
legitimacy-based rationale. Second, constructive interpretation permits surprising inclusions.
Norms previously unrecognized, or recognized with different content, can bind if the best
legitimacy-based justification of legal practice endorses them. It is worth emphasizing that to
defend this basic idea is not to defend “law as integrity”43 or any other particular conception of
political legitimacy. Nonetheless, LRLR and LD validate constructive interpretation as the only
justifiable method of legal reasoning.
The argument below accompanies each premise with “(LRLR)” or “(LD)” to indicate
which thesis, or which thesis’s underlying ideas, the premise is based on.
1. The exercise of political power requires justification. To be legitimate, it must be capable of being shown to be permissible on the basis of considerations capable of justifying the exercise of power. Call such considerations “legitimacy reasons.” (LRLR)
2. Insofar as agents can affect others interests and aims in an interactive environment, they exercise political power. (LRLR/LD)
42 To understand what law ‘factually requires’ of a subject is to understand what requirements it actually produces for practical reason. Of course, it may purport to require much more (or, even less) than it factually does. The question here is when and in what way practical reason ought treat what the law purports to require as required – in what sense does the agent have reason in virtue of the law. My assertion here is that constructive interpretation, as a theory of proper legal reason, correctly answers this issue. I need not, then, deny competing conceptions of legal content, for instance Raz’s view that legal content is determined by social sources alone. Raz, The Authority of Law: Essays on Law and Morality, 39-‐52. 43 This much like how, for Dworkin, the project of substantiating constructive interpretation as a general approach to determining legal content, in Law’s Empire, is independent of endorsing a particular view of legitimacy (say, “conventionalism” or “integrity”). The defense of “integrity” comes after, and as a separate matter from, the defense of constructive interpretation. Dworkin, Law's Empire, 45-‐113, 76-‐275.
27
3. Hence, agents in an interactive environment have a responsibility to exercise power legitimately. To do otherwise is to wrong others. (LD)
4. Where law exists, it is a salient regulator of power. It has, by virtue of its recognition,
special prominence in the society’s effective structuring of the interactive environment and social relationships. (LRLR)
5. Given this, the central moral concerns about law are ones of legitimacy. The fact of law
only counts in favor of a course of action if it is a legitimacy reason for that action. (LRLR)
6. If law is a legitimacy reason, it favors a course of action. Call legal facts that are reasons
(i.e., legitimacy reasons) “legal reasons.” (LRLR)
7. Since law is a salient regulator of power, and since agents must exercise power responsibly, they must answer the question, “What does the fact of law require of me?”, and so exclusively in terms of legal reasons. (LD)
8. For the sake of the legal decision, i.e., the judgment about what to do in virtue of the law,
an agent should prefer weightier legal reasons over less weighty. (LD)
C1: In order to discern what law factually requires of a subject in a circumstance, one must construe law facts in terms of the best legitimacy-based rationale available.44
C2: If a legal fact, e.g., a legal standard, cannot be given a sound legitimacy-based justification, it is properly ignored by practical reason. It would be misleading to say that one has a legal obligation to comply, since one would have no practically significant legal reason to do it. C3: Furthermore, if the fact of a legal standard demanding Φ makes it the case that the best legitimacy-based rationales indicate that one Φ’ or (quite different act) ψ, then one has legal reason, and could be required by law, to Φ’ or ψ.45
44 In other words, one must make law ‘the best it can be’ in terms of political legitimacy. Why best? This follows from premise 8, that we ought to prefer weightier legal reasons to less weighty when political power is at stake. How do we avoid confusing what the law is with what it ought to be? Again, the theory defended here is not about the nature of law or its content, but about how to reason with law. We avoid the confusion by marking the distinction between valid legal standards and what those standards factually require of an agent. I am grateful to an anonymous reviewer for pressing me to clarify these points here and above. 45 To illustrate, consider a judge faced with a previously unaddressed matter of common law, e.g., an issue about the precise scope of liability for emotional injuries. Prior judicial decisions may make it the case that only certain options are viable (even if those decisions were morally suboptimal at the time of their issuance) from view of legitimacy – to, for instance, protect certain expectations or maintain doctrinal stability attractive in view of administrative efficiency. Dworkin’s discussion of McLoughlin is helpful. See Dworkin, Law's Empire, 238-‐54. Importantly, though, the phenomenon indicated here could obtain even if we do not accept “integrity” as an independent political virtue.
28
REASONS OF LAW
The argument here shows that, whatever Dworkin’s additional aims in offering the theory,
constructive interpretation successfully models correct legal reason. Moreover, LRLR and LD
substantiate constructive legal reasoning while preserving its important and distinctive aspects,
especially surprising omissions and surprising inclusions. Hence, Dworkin provides an accurate
account of what it is to have a legal reason, and a correct picture of the basic consequences of
this view for legal reasoning. It is, perhaps, an especially demanding vision of legal reasoning –
it is protestant in its mandate for individual discernment – but if the above argument is sound, it
is the correct picture no less.
I have not supplied a substantive account of legitimacy, and I have set aside many
important issues concerning what such an approach to legal reason would look like in practice.46
Obviously, we are not (as officials, or average subjects of law) Herculean in our ability to discern
the total moral implications of all our legal decisions. However, this is hardly unique to legal
decision-making – it is a pervasive feature of much moral decision-making, whether it concerns
friendship, family, professional life, cosmopolitan obligations to the socially vulnerable, personal
conduct in historically patriarchal social institutions, etc. In all these matters, moral dilemmas
can arise, we can disagree, and we can easily misjudge (from bias, or any other burden of
judgment). Moreover, we are often faced with deciding under resource constraints of time,
information, and cognitive energy, and must (to reason well) be sensitive to our limitations.
What I can say, as a general point, is this. On the view defended here, proper legal reason is a
branch of moral reason. As such, whatever heuristics and decision-methods are appropriate to
address the just mentioned general difficulties for moral decision-making are also appropriate for
the context of legal reasoning. Constructive legal reasoning is not an invitation to hubris – it is
46 I say more elsewhere. See Anthony R. Reeves, "Judicial Practical Reason: Judges in Morally Imperfect Legal Orders," Law and Philosophy 30, no. 3 (2011).
29
constrained by all the standards of good moral reasoning. To partially restate, it is a practice of
earnestly and humbly discerning what we owe each other in political life.
VI. Conclusion
Roughly twenty years after Dworkin announced that jurisprudence’s proper agenda was to
discern what counts as a good reason of law, Dworkin reformulated the basic question of
jurisprudence as: “What sense should be given to propositions of law?”47 Undoubtedly, this shift
in focus was at least partly motivated by his positivist critics. Given his persuasive response to
his first question, though, it was perhaps mistaken to let legal positivists set the agenda for legal
philosophy. This is not to deny that there are theoretical puzzles with which contemporary
general jurisprudence deals, or that there is nothing at stake in the Dworkin/positivist debates.
Yet, it is surely as interesting and important to know what counts as a legal reason as it is to
know what constitutes a legal standard, and we should want legal philosophy to illuminate the
proper character of legal reasoning. Moreover, putting the theoretical approach in these terms
undermines the sense of retreat involved in giving positivism its due, and acknowledging its
many insights. Joseph Raz, in an article critical of Dworkin’s jurisprudence, acknowledges (with
some reservation) that perhaps Dworkin has offered a correct ethics of adjudication. Raz insists,
though, that Dworkin is mistaken in thinking that judges would, by adopting his method of
adjudication, be following the law.48 Perhaps, but in any case, we can reply: “Nonetheless, they
would be countenancing all applicable reasons of law and, should they conduct their legal reason
well, arrive at a correct legal decision.” In other words, they would have treated law in all the
47 Dworkin, "Law as Interpretation," 179. 48 Joseph Raz, "Authority, Law, and Morality," The Monist 68 (1985): 310. Raz’s example on the page is somewhat narrow, concerning a case that seems to involve legal indeterminacy, but his point could be generalized on the basis of his theory. By using morality to discern the content of the law, judges (and others) would only by happenstance, on Raz’s view, end up following the law – they would have an unreliable guide to legal content.
30
REASONS OF LAW
ways it deserves to be treated from view of practical reason. The victory for the positivist (if it is
one) then looks fairly narrow. In any case, Dworkin does, I have argued, offer a correct general
answer to the general question of what it is to have a reason of law.
Bibliography
Brand-‐Ballard, Jeffrey. Limits of Legality: The Ethics of Lawless Judging. New York: Oxford University Press, 2010.
Buchanan, Allen. Justice, Legitimacy, and Self-‐Determination: Moral Foundations for International Law. Paperback ed. Oxford: Oxford University Press, 2004.
Dworkin, Ronald. "Does Law Have a Function? A Comment on the Two-‐Level Theory of Decision." Yale Law Journal 74 (1965): 640-‐51.
———. Freedom's Law: The Moral Reading of the American Constitution. Cambridge, MA: Harvard University Press, 1996.
———. "Judicial Discretion." Journal of Philosophy 60 (1963): 624-‐38. ———. Justice for Hedgehogs. Cambridge, MA: Harvard University Press, 2011. ———. Justice in Robes. Cambridge, MA: Harvard University Press, 2006. ———. Law's Empire. Cambridge, MA: Harvard University Press, 1986. ———. "Law as Interpretation." Texas Law Review 60 (1982): 527-‐50. ———. A Matter of Principle. Cambridge, MA: Harvard University Press, 1985. ———. ""Natural" Law Revisited." University of Florida Law Review 34, no. 2 (Winter 1982): 165-‐88. ———. "A New Philosophy for International Law." Philosophy & Public Affairs 41, no. 1 (2013): 2-‐30. ———. Taking Rights Seriously. Cambridge, MA: Harvard University Press, 1977. Edmundson, William A. Three Anarchical Fallacies: An Essay on Political Authority. Cambridge:
Cambridge University Press, 1998. Enoch, David. "Reason-‐Giving and the Law." Oxford Studies in Philosophy of Law 1 (2011): 1-‐38. Estlund, David. Democratic Authority: A Philosophical Framework. Princeton: Princeton University Press,
2008. Greenberg, Mark. "How Facts Make Law." Legal Theory 10 (2004): 157-‐98. Hart, H. L. A. The Concept of Law. 3rd ed. Oxford: Oxford University Press, 2012. Leiter, Brian. "Heidegger and the Theory of Adjudication." Yale Law Journal 106, no. 102 (1996): 253-‐82. ———. Naturalizing Jurisprudence: Essays on American Legal Realism and Naturalism in Legal
Philosophy. Oxford: Oxford University Press, 2007. Levenbook, Barbara Baum. "How to Hold the Social Fact Thesis: A Reply to Greenberg and Toh." Oxford
Studies in Philosophy of Law 2 (2013): 75-‐102. Lyons, David. "Derivability, Defensibility, and Judicial Decisions." In Moral Aspects of Legal Theory:
Essays on Law, Justice, and Political Responsibility. Cambridge: Cambridge University Press, 1993.
———. "Moral Aspects of Legal Theory." In Moral Aspects of Legal Theory: Essays on Law, Justice, and Political Responsibility, 64-‐101. Cambridge: Cambridge University Press, 1993.
MacCormick, Neil. Rhetoric and the Rule of Law: A Theory of Legal Reasoning. New York: Oxford University Press, 2005.
Marmor, Andrei. Interpretation and Legal Theory. 2nd ed. Portland: Hart Publishing, 2005.
31
Rawls, John. Political Liberalism. Paperback ed. New York: Columbia University Press, 1996. Raz, Joseph. The Authority of Law: Essays on Law and Morality. Oxford: Clarendon Press, 1979. ———. "Authority, Law, and Morality." The Monist 68 (July 1985): 295-‐324. Reeves, Anthony R. "The Binding Force of Nascent Norms of International Law." Canadian Journal of Law
and Jurisprudence 27, no. 1 (2014): 145-‐66. ———. "Do Judges Have an Obligation to Enforce the Law?: Moral Responsibility and Judicial
Reasoning." Law and Philosophy 29, no. 2 (2010): 159-‐87. ———. "Judicial Practical Reason: Judges in Morally Imperfect Legal Orders." Law and Philosophy 30, no.
3 (2011): 319-‐52. ———. "Practical Reason and Legality: Instrumental Political Authority without Exclusion." Law and
Philosophy Forthcoming (2015). Schauer, Frederick F. Playing by the Rules: A Philosophical Examination of Rule-‐Based Decision-‐Making in
Law and in Life. Oxford: Oxford University Press, 1991. Shapiro, Scott J. "What Is the Internal Point of View?". Fordham Law Review 75, no. 3 (2006): 1157-‐70. Simmons, A. John. "Justification and Legitimacy." Ethics 109, no. 4 (July 1999): 739-‐71. Spaak, Torben. "Guidance and Constraint: The Action-‐Guiding Capacity of Neil Maccormick's Theory of
Legal Reasoning." Law and Philosophy 26 (2007): 343-‐76. Sreedhar, Susanne. Hobbes on Resistance: Defying the Leviathan. New York: Cambridge University
Press, 2010. Toh, Kevin. "An Argument against the Social Fact Thesis (and Some Additional Preliminary Steps Towards
a New Conception of Legal Positivism)." Law and Philosophy 27 (2008): 445-‐504. Waldron, Jeremy. "Rights and Majorities: Rousseau Revisited." In Liberal Rights: Collected Papers 1981-‐
1991, 392-‐421. Cambridge: Cambridge University Press, 1993. Wellman, Christopher Heath. "Liberalism, Samaritanism, and Political Legitimacy." Philosophy and Public
Affairs 25, no. 3 (Summer 1996): 211-‐37.