The end of jurisprudence.

AuthorHershovitz, Scott

ESSAY CONTENTS INTRODUCTION I. THE FLY-BOTTLE II. THE TROUBLES III. THE WAY OUT IV. HOUSE RULES V. PROMISES VI. PLAYING GAMES VII. CAN WE LEAVE THE FLY-BOTTLE? VIII. SHOULD WE LEAVE THE FLY-BOTTLE? CONCLUSION: THE END OF JURISPRUDENCE INTRODUCTION

For more than forty years, jurisprudence has been dominated by the Hart-Dworkin debate. The terrain of the debate has shifted several times, but it is not hard to say what is in dispute. Hart and his heirs contend that the content of the law--the set of rights, obligations, privileges, and powers in force in a legal system--is determined by social facts. Dworkin and his followers counter that moral facts play a part in determining law's content. Some find the debate moribund, but the truth is that the last decade of the debate has been as productive as any. Even though most participants defend positions that have been familiar for twenty years or more, the arguments advanced are increasingly sophisticated. They have not resolved the debate, but they have deepened our understanding of it. Still, I am sympathetic to the prescription of those who think the debate stale: we should move on.

We should move on because we can. There is a way out of this fly-bottle. (1) Indeed, as Wittgenstein might have supposed, we are trapped by our own confusion, or at least that is how it now seems to me. The position I am going to defend is not completely novel. In recent years, Mark Greenberg has developed a view that shares much in common with it. (2) But Greenberg sees himself as answering the question at issue in the Hart-Dworkin debate, rather than moving beyond it. Moreover, as Jeremy Waldron recently observed, (3) Dworkin himself seems to have hit on something like the view I will defend toward the end of his life, and I think he glimpsed it much earlier. But for most of his career, Dworkin was buzzing around the fly-bottle with the rest of us, developing and defending a view that participates in the confusion that I hope to free us from. I'll return to this history later. For now, I just want to emphasize that my aim is to reject the question at the center of the Hart-Dworkin debate, rather than defend anyone's answer to it.

Of course, an end to the Hart-Dworkin debate would not mark the end of jurisprudence. But it would allow us to reorient jurisprudence toward a different end. For far too long, the field has been preoccupied by a question that is poorly formed. The time has come to set it aside and take up a better one. But before we can set a new end for jurisprudence, we must free ourselves from the old one. To start, we should remind ourselves what the fly-bottle looks like from the inside.

  1. THE FLY-BOTTLE

    We'll turn to the Hart-Dworkin debate in a moment, but I don't want to start there. Instead, I want to start with a sign that is just around the corner from my house. I rarely give the sign much thought, but it poses all sorts of puzzles. Some are historical: Who put the sign there? Who decided to put it there? Who decided it would say, "SPEED LIMIT 35"? In addition to the historical puzzles, there are sociological ones: Do people notice the sign? Does it affect their behavior? Still other puzzles are normative: Should the sign have a different number on it? Should it be a bit further down the road? Should it be there at all? And then there is the puzzle that interests me the most, which is also normative, but in a different way: Does the sign affect how people ought to behave? If it does, how and why? What are the normative upshots of the fact that the sign is where it is and says what it says?

    Some answers are easy enough. To start, the sign has prudential upshots. It signals something about the speed at which it is safe to drive. Assuming the sign got there in the normal way, its text and location reflect decisions made by people with expertise in traffic control. Given the characteristics of the road and the neighborhood surrounding it, it may not be safe to drive much faster than thirty-five miles per hour. Now that might be true quite apart from the sign, in which case the sign does not create new reasons but instead signals reasons that I already have but might not recognize. But the sign might also create new reasons. Driving is in part a coordination problem. It is safest to drive roughly the same speed as everyone else. If other drivers will react to the sign by traveling about thirty-five miles per hour, prudence may require that I do the same. And prudence may have even more to say. If the police are likely to ticket people who drive in excess of speeds posted on signs like this one, then prudence may require that I keep my speed down to avoid a fine.

    The sign also has moral upshots. Some are closely related to the prudential ones. To the extent that I have moral reasons not to impose excessive risks on others, the presence of the sign, and the reactions other drivers are likely to have to it, may make it the case that I am morally required to drive about thirty-five miles per hour. But there are other ways the sign might make a moral difference. Perhaps the people who put the sign there have the moral authority to decide how fast I should drive. If so, I may be morally obligated to do as they have instructed. That is, I may be morally obligated to drive no more than thirty-five miles per hour. Or perhaps I have promised my wife that I won't get any more speeding tickets. If so, I may be morally obligated not to act in ways that would lead the police to ticket me. That might require that I drive at less than the speed posted on the sign; more likely, it requires that I not drive too much above it.

    Many people assume that the sign has yet another kind of normative upshot. They say that whatever the sign requires as a matter of prudence or morality, it legally requires that I drive no more than thirty-five miles per hour. (4) That's a familiar thought, but I should note one complication with it. Some people who speak this way think that our legal practices generate a distinct domain of legal normativity, separate from other normative domains, like morality and prudence. (5) To these people's way of thinking, a complete list of the sign's normative consequences would need to include its distinctively legal consequences alongside its moral and prudential ones. Other people, however, would deny that the legal requirements imposed by the sign are properly listed with its moral and prudential requirements. Those latter requirements, they might say, are inherently normative, while the legal requirements need only purport to be normative and, indeed, might not be. This view comes in a variety of flavors. The most common holds that when we refer to legal requirements we are referring to the law's point of view on our moral requirements. I'll say more about this later. For now, I just want to note that if legal requirements are not genuinely normative, they are at least quasi-normative, as they traffic in normative notions, like obligation and right. And that is enough for our purposes. Indeed, the thought that traffic signs and the legal practices they are embedded in have distinctively legal upshots--that is, normative or quasi-normative upshots that are legal but not moral or prudential--is the glass that makes the fly-bottle. And it is that thought that I am going to propose we reject.

    Why is the thought that legal practices have distinctively legal upshots the glass that makes the fly-bottle? Because that thought sets the terms of the Hart-Dworkin debate. Indeed, without that thought, there would be nothing to debate. Let me show you what I mean. Suppose that I tell you that when you are on this particular road, you are legally obligated to drive no more than thirty-five miles per hour. And now suppose that you ask me why that is. There are two ways to hear your question. You might want to know why the people who set that requirement set that one, rather than a different one. That is, you might want to know why they set the speed limit at thirty-five, rather than twenty-five or forty-five. But you might be after something else. You might want to know what makes it the case that you are legally required to drive no more than thirty-five miles per hour. That is, you might want to know what facts make that fact obtain. After all, the fact that you are legally required to drive no more than thirty-five miles per hour is not a basic fact about the world as we find it, in the way that we might suppose some fundamental physical facts are. There are further facts that make the speed limit what it is, and it is reasonable to suppose that we could figure out which facts those are. (6)

    Without doubt, some social facts are among the further facts that determine the speed limit. In other words, the speed limit is what it is at least in part because of what certain people said and did. Someone, we can be reasonably sure, decided to set the speed limit at thirty-five rather than at twenty-five or forty-five, and that decision is one of the facts that makes the speed limit what it is. Everyone in the Hart-Dworkin debate agrees about that. What they disagree about is whether all the facts that figure in fixing the legal requirement are social facts, or whether there might be (or must be) some normative facts that figure in determining the content of the law too. (7)

    Roughly speaking, there are three positions in the debate. According to exclusive legal positivists, the content of the law is determined solely by social facts. If this view is right, then when we set out to explain why you are legally required to drive no more than thirty-five miles per hour, we may point only to facts about what people have said, done, thought, and so on. It would be a mistake for us to point to any normative facts about what people should say, do, or think. The reason it would be a mistake is that facts like that play no part in determining the content of the law. Anti-positivists...

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