The Grounds of Law

Abstract

When H.L.A. Hart jumpstarted jurisprudence with The Concept of Law, he did so with a methodology particular to his own time and place: Oxford, circa 1961. Ordinary-language philosophy was in the air; Hart’s focus and approach were deliberately, determinedly conceptual. More than fifty years on, the pendulum has swung in the other direction. Metaphysical grounding is all the rage; philosophers as early as Ronald Dworkin and as recently as Gideon Rosen argue that what we care about when we engage legal philosophy is not what words mean or what concepts refer to, but rather the nature of their referents, quite apart from how we might think or talk about them. This dichotomy rests on a false choice. To make progress on the central questions of first-order jurisprudence, we need to distill insights from both approaches. Within a framework I call conceptual grounding (CG), the body of information within a historically bounded representational tradition acts as a constraint on our subject matter; once identified, we use metaphysical tools to understand this subject matter. The process is complex, and there are no promises—in particular, if we don’t have the historical resources to fix intensions within the representational tradition, we probably won’t have a principled manner with which to answer first-order jurisprudential questions. Still, we can make progress. Chapter 1 describes the metasemantic starting points, applying lessons from the causal theory of reference to ‘law’ and its cognates. These terms are rigid property designators whose meaning is a constant function and whose designata comprise stable cross-world abstract objects. Identifying designata is a matter of deference to experts within a division of linguistic labor. At the same time, unlike natural-kind terms, semantic values for ‘law’ (and cognates like ‘tort’) must be justifiable to the community of language users who give up freedoms and liberties in exchange for a particular form of governance. Step 1 in CG balances these considerations of reference, deference, and justification. Step 2 then provides the real definition of the identified referents fine-grained enough to provide the right sort of explanatory power. Chapters 2 and 3 address objections to CG. Challenging Step 1, various forms of deflationism ask why jurisprudential questions implicate robust metaphysics rather than a broader, more nuanced conceptual analysis, or perhaps a neo-Carnapian metaontology. I argue that these deflationary alternatives don’t have the resources to vindicate answers to our questions. From the opposite direction, challenging Step 2, various forms of methodological antipositivism object that it’s impossible to separate our inquiry into two discrete stages, one of which is non-normative. According to this challenge, jurisprudential inquiry is necessarily shot through with moral considerations. In response, I show not only how a multi-staged inquiry is possible, but also why it’s a virtue rather than a vice, better accounting for the roles of history and philosophy so that we can finally position ourselves to answer the question, what is law?