Abstract
This chapter offers a critical analysis of David Plunkett and Scott Shapiro’s novel account of general jurisprudence, which parallels this field to metaethics. We hold that this conception requires legal discourse to be exclusively normative, which is problematic on two counts. On the one hand, many important jurisprudes deny that, strictly speaking, legal discourse is normative in any relevant sense. On the other hand, even if we concede that part of legal discourse is normative, Plunkett and Shapiro’s conception of what general jurisprudence is about would not illuminate an important part of legal thought and talk that is descriptive. If our observations are correct, it is hard to appreciate the programmatic appeal of Plunkett and Shapiro’s proposal. Contrary to what they think, their account does not illuminate existing positions in general jurisprudence and cannot be used by legal scholars to advance the philosophical discussion in some important respects about legal thought, talk, and what, if any, such thought and talk are about.
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Notes
- 1.
Plunkett and Shapiro (2017).
- 2.
Ibid., p. 47.
- 3.
Ibid., p. 48.
- 4.
Ibid., p. 48.
- 5.
Ibid., p. 49.
- 6.
Ibid., p. 49.
- 7.
- 8.
Plunkett and Shapiro (2017), p. 50.
- 9.
Although Plunkett and Shapiro are not explicit about it, we see no reason to reject a third possibility: general jurisprudence would still be a branch of the metanormative project if the law were to involve formal and robust norms. We maintain that our conclusions would also apply to this scenario.
- 10.
We take it that by “to involve,” Plunkett and Shapiro mean something close to what other philosophers refer to by the more intuitively graspable term “to contain”, for instance, Hart. See Hart (1961). We will proceed on the assumption then that to say that the law involves norms is to say that it contains norms. However, in order to keep our presentation of Plunkett and Shapiro’s ideas as unaltered as possible, we won’t make any terminological changes in this respect.
- 11.
For instance, descriptions of legislative debates.
- 12.
A different way to formulate this claim is to say that by accepting that general jurisprudence belongs to the metanormative project, one is committed to the view that there is nothing that the law involves that is not normative in either robust or formal sense.
- 13.
In cashing out the sense of aboutness they endorse with respect to ethical thought and talk, Plunkett and Shapiro write:
Now consider the idea of ethical thought and talk being about certain things. The sense of ‘aboutness’ we have in mind here is an intensional one: in the way that “Santa Claus lives at the North Pole” is about Santa Claus, that is, someone who might not exist. This notion of ‘aboutness’ is consistent with deflationary, minimalist, and quasi-realist readings of the representation involved here. At least at first blush, ethical thought and talk seem to be about things, at least in this intensional sense. Moreover, they seem to be about certain distinctively ethical things (e.g., ethical facts, properties, relations). For example, the thought that Bob has an ethical obligation to donate more of his money to charity is about (a) things that many nonethical thoughts are also about (e.g., Bob, his money, charity, donation) and (b) things that are distinctively ethical, namely, ethical obligation.6
And in footnote 6, the one that appears at the end of this paragraph, they add:
We don’t want to build it into our account that ethical thought and talk are in fact about anything distinctive at all, in even this razor-thin sense of ‘about’. We remain agnostic here because certain views in metaethics deny this claim. Some metaethical expressivists maintain that ethical words or concepts are not the kinds of things that generate intensions, while other metaethical error theorists might think that they are simply too defective to produce intensions. In our account, then, it is the task of metaethics to explain how ethical things fit into reality only insofar as ethical thought and talk are about certain distinctive things (in the razor-thin sense of ‘about’ described in the text). Plunkett and Shapiro (2017), pp. 40–41.
We think Plunkett and Shapiro would endorse the very same sense of aboutness for the legal case.
- 14.
Ibid., p. 50.
- 15.
Ibid., p. 50.
- 16.
According to Brian Leiter, among American legal realists we can find Karl Llewellyn, Jerome Frank, Felix Cohen, Herman Oliphant, Walter Wheeler Cook, Underhill Moore, Hessel Yntema, Max Radin, and Holmes. See Llewellyn (1930, 1931), Frank (1930, 1931), Cohen (1935), Oliphant (1928), Cook (1937), Moore (1923), Moore and Callahan (1943), Moore and Hope (1929), Moore and Sussman (1931), Yntema (1941), Radin (1925, 1930) and Holmes (1897).
- 17.
Hart (1961).
- 18.
Brian Leiter has largely argued for a different interpretation of American legal realism. According to Leiter’s interpretation American legal realism should be understood as advancing a new methodological approach towards the study of law, rather than a conceptual explanation of “law”. See Leiter (2001, 2007, 2010, 2013) and Cohen (1935). It is not our purpose here to discuss what interpretation of American legal realism is more appropriate. We will stick to the interpretation suggested by Hart, as something like it has been explicitly defended at least for some American legal realists such as Cohen. See Ibid.
- 19.
There is a vast literature concerning the proper way to understand what reasons for action are. As it will become clear later, for our purpose in this paper, it is enough to provide the reader with a rough understanding of the distinction between normative and non-normative reasons for action. The distinction has been suggested by philosophers such as Raz, Smith, Parfit, and Dancy. See Raz (1975, 2011), Smith (1994), Parfit (1997) and Dancy (1995, 2000).
- 20.
Cohen (1935).
- 21.
Scanlon (2004), p. 231.
- 22.
Alvarez (2017).
- 23.
Ibid.
- 24.
Scanlon (1998), p. 35.
- 25.
Hart (1961), p. 84.
- 26.
We agree with Enoch in recognizing that the discussions on the reason-giving force of the law are sometimes confused: “When Shapiro (2001, p. 176) introduces his ‘practical difference thesis’, for instance, he talks in motivational terms, though it seems to me what he has in mind is really that the law must be able to make a normative difference. And for a similar unclarity regarding the distinction between motivating and normative reasons, see Green (1999, p. 40)”, See Enoch (2011). The articles cited by Enoch in this passage are Shapiro (2001) and Green (1999). We take it that, if Plunkett and Shapiro were to explain normativity in terms of reasons for action, then they would agree with Coleman and Enoch in saying that it is clear that the relevant question is whether the law gives normative reasons for action—and, if it does, what kind of normative reasons. See Coleman (2001), pp. 71–72; Enoch (2011).
- 27.
We could also include here some passages of Th. Hobbes’ Leviathan Hobbes (1996), pp. 175–177.
- 28.
Hart (1982), p. 248.
- 29.
Hart (1961), p. 21.
- 30.
- 31.
See Chiassoni (2016), p. 349.
- 32.
Ibid., p. 408.
- 33.
Among the “non-normativists”, we could easily add as well Scandinavian legal realists. For an excellent reconstruction of this position, one that shows that they were “non-normativists”, see Hart (1983).
- 34.
It is important to keep in mind here the programmatic nature of Plunkett and Shapiros’ proposal.
- 35.
Perhaps Brian Leiter’s reconstruction of American legal realism understood mainly as a theory of legal adjudication would be an exception to this widely accepted belief.
- 36.
- 37.
Plunkett and Shapiro (2017), p. 39.
- 38.
Schneider A Law Without Rules: Disputing Legal Normativity [unpublished manuscript].
- 39.
Raz (1980), pp. 234–238. There is a third kind of statement, external legal statements, that doesn’t need to concern us in this article.
- 40.
See Raz (1998), p. 248. Raz explicitly declares that commitment here means moral commitment, that is, statements providing moral (or, simply, unqualified) reasons for action (“Committed statements, which are ordinary moral statements about what ought to be done, what rights and duties people have because of the law”, p. 248), and that internal legal statements, in Hartian terms, are, despite Hart’s theoretical qualms, morally committed statements (“Committed statements are essentially the same as Hart’s internal statements”, p. 248, and “I find it impossible to resist the conclusion that most internal or committed internal legal statements, at any rate those about the rights and duties of others, are moral claims”, p. 249). In the same vein, see Vecchi (2017), pp. 96–97.
- 41.
- 42.
We understand the semantic features of a legal statement as the information part of that statement’s communicative upshot—the information it communicates—that is linguistically encoded. On the other hand, we understand the pragmatic features of a legal statement as the information part of its communicative upshot that is encoded by certain facts about the user of that statement: her beliefs, intentions, dispositions, etc.
- 43.
- 44.
Enoch (2011), p. 23.
- 45.
See Mullins (2018). According to a widely spread view, implicatures can be understood as the part of the content communicated by an utterance of a sentence P in context C that the speaker of that sentence P is committed to by her utterance, and both the speaker and the hearer are expected to know that the speaker is committed to. Grice (1991).
- 46.
Mullins (2018), p. 377 emphasis added.
- 47.
Enoch (2011), p. 4.
- 48.
Mullins (2018), p. 384.
- 49.
Perhaps some would say that a judge that adjudicates against her own moral commitments is inconsistent. We think there is no inconsistency in claiming that “I morally ought to p” and “I legally ought to p”. And this is not only a logical possibility—the fact that, for the most part, judges apply the law homogeneously could be explained in (at least) two different ways: either all (all!) judges think likewise in moral and political terms or they differ politically and morally but agree on what the criteria of legal validity are. The latter explanation seems more plausible and we take this as a signal that some judges, at least in some cases, adjudicate against their own moral and political commitments. But we admit that at the end of the day whether this means that they are inconsistent or not depends on whether somebody embraces positivism or some form of anti-positivism. We don’t want to engage here, though, in the positivist vs. anti-positivism debate. The fact remains that some (or perhaps many) judges proffer detached legal statements in this sense.
- 50.
Let’s recall one more time that “You ought to pay T” is semantically ambiguous. So, the way to distinguish between its normative interpretation and its descriptive interpretation is by a means of a pragmatic analysis.
- 51.
According to Raz, Hart himself was bound to accept that “not all legal statements are internal”. See Raz (1998), p. 249. Our conclusion, then, is congenial with Raz’s reconstruction of the Hartian position.
- 52.
Toh (2011), pp. 109–110 citations omitted, and emphasis in the original.
- 53.
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Luque, P., Martínez Torres, I. (2021). Not Everything Is Normativity: A Critique to Plunkett and Shapiro’s Account of General Jurisprudence. In: Fabra-Zamora, J.L., Villa Rosas, G. (eds) Conceptual Jurisprudence. Law and Philosophy Library, vol 137. Springer, Cham. https://doi.org/10.1007/978-3-030-78803-2_14
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