Is Law Determined by Morality?

This chapter considers the contemporary versions of the substantive nondetachment view about the nature of law. This view takes two main forms. According to Dworkin's influential theory, law's content can never be detached from normative considerations. What the law is—always, and necessarily—depends on certain evaluative considerations about what it ought to be. A more moderate version of this nondetachment view holds that whether the content of law can or cannot be detached from normative considerations is a contingent matter, depending on the norms that happen to prevail in a given legal system, and thus the nondetachment view is at least sometimes true. The main argument of this chapter is that both of these views are mistaken.

A Pure Theory of Law?

This chapter discusses Hans Kelsen's influential attempt to present a “pure” theory of law, and the reasons for its failure. It tries to show that Kelsen's pure theory of law is the most striking—and in many ways, still the most interesting—defense of a complete detachment view, both in method and substance. It argues that the main reason for the failure of this project is that it identified the detachment view with antireductionism. Kelsen thought that a theory about the nature of law should avoid any reduction of legal facts to facts of any other type, either social or moral.

The Language of Law

This chapter focuses on the role of language and interpretation in understanding the content of the law. The argument here is motivated by Dworkin's argument that we can never grasp what the law says without interpretation. Since, as he argues, interpretation is partly, but necessarily, an evaluative matter, understanding what the law requires is necessarily dependent on some evaluative considerations. It is argued that this conception of what it takes to understand a legal directive is based on a misunderstanding of language and linguistic communication. The chapter attempts to clarify some of the semantic and pragmatic aspects of what the law says. It shows that when linguistic considerations are taken into account in the appropriate ways, interpretation becomes the exception, not the standard form of understanding what the law says. It also shows how certain pragmatic aspects of understanding a speech situation can be used to clarify the distinction between understanding what the law says and interpreting it. This last chapter completes a defense of a fairly strong detachment view about the nature of law, both in method and substance.

Social Rules at the Foundations of Law

This chapter presents some of H. L. A. Hart's main contributions to legal philosophy. Hart's The Concept of Law is widely regarded as the single most important contribution to legal philosophy in the twentieth century. It shows that Hart's theory is the most consistent and sustained attempt to develop a detachment view of law and legal philosophy, and one that is thoroughly reductive. The chapter introduces another separation, or detachment, that Hart's theory attempted, and one that is less successful: the detachment of law from state sovereignty. The legal positivist tradition, from Hobbes to the main positivists of the nineteenth century, conceived of law as the instrument of political sovereignty, largely influenced by the emergence of the modern state. Hart tried to show that this identification of law with state sovereignty is profoundly misguided; law is independently grounded on social rules, not on political sovereignty. It is argued that Hart's attempt to separate our understanding of law from the concept of sovereignty is only partly successful.

Introduction

This introductory chapter begins with a discussion of the concept of legal validity and the three main schools of thought have emerged in response to the general questions concerning the conditions of legal validity. It then sets out the two main themes that inform the main argument of this book: the relations between the factual and the normative and between substance and method. The book shows that the debates about the possibility of detachment in both substance and method, and the subtle relations between them, have informed a great deal of the theorizing in legal philosophy during the last century. It shows that a substantial part of these debates centers on the question of the possibility of reduction. An overview of the subsequent chapters is also presented.

Is Legal Philosophy Normative?

H. L. A. Hart characterized his theory about the nature of law as “descriptive and morally neutral.” Like previous legal positivists such as John Austin and Hans Kelsen, he thought that a philosophical account of the nature of law should strive to avoid moralizing of any kind, and should aim at an explanation of the nature of law that is quite general in its application—one that explains what law, in general, is. However, many contemporary legal philosophers claim that a theory about the nature of law, such as Hart's legal positivism, cannot be detached from moral and political views about law's merits. This chapter argues that Hart was quite right, and that it is both possible and theoretically desirable to detach a philosophical account of the nature of law from moral and political views about law's merit.

Authority, Conventions, and the Normativity of Law

This chapter completes the outlines of a plausible version of legal positivism. It is organized into two parts. The first section discusses some of Joseph Raz's ideas about the nature of practical authority and the implications of his views about the normativity of law. The second section returns to the rules of recognition and tries to show that, though H. L. A. Hart is basically right about the idea that social rules are at the foundations of law, we need a theory of social conventions to articulate the requisite foundations. These two ideas in hand—the authoritative nature of law and its conventional foundations—provide the main building blocks needed to reconstruct a plausible version of Hart's theory of law.