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Roger Shiner Norm and Nature: The Movements of Legal Thought. Oxford: Clarendon Press 1992. Pp. xiv + 348.

Published online by Cambridge University Press:  01 January 2020

Frederick Schauer
Frederick Schauer*
Affiliation:
John F. Kennedy School of Government Harvard University, Cambridge, MA, 02138, USA
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Type
Critical Notice
Information
Canadian Journal of Philosophy , Volume 24 , Issue 3 , September 1994 , pp. 495 - 509
Copyright
Copyright © The Authors 1994

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References

1 The example is pursued at greater length in Roger, A. Shiner ‘Law and Authority,’ Canadian Journal of Law and Jurisprudence 2 (1988) 3-18.Google Scholar

2 I spend less time here on Shiner’s argument for anti-positivism than the space it occupies in the book might suggest. This should not be taken to suggest that I find Shiner’s argument for anti-positivism unimportant or flawed. On the contrary, I find it thought-provoking and largely sound. But because I take Shiner’s claim about the movement of legal thought seriously, I concentrate on the earlier movement from simple to sophisticated positivism. Here is where the false seeds of normativity are planted, and thus I focus on this temporally as well as logically antecedent move.

3 Among the most illuminating discussions prior Shiner’s book is Gerald J. Postema, ’The Normativity of Law,’ in Ruth, Gavison ed., Issues in Contemporary Legal Philosophy: The Influence of H.L.A. Hart (Oxford: Clarendon Press 1987) 81-104Google Scholar. See also Postema’s ‘Positivism, I Presume? … Comments on Schauer’s “Rules and the Rule of Law,“’ Haroard Journal of Law and Public Policy 14 (1991) 797-822.

4 As Jules Coleman puts it, ‘The more interesting question concerns the law’s normativity or authority. If law is the command of the sovereign, how is it that law can be binding or thought to create obligations in those to whom it is directed?’ (’Rules and Social Facts,’ Haroard Journal of Law and Public Policy 14 [1991]703-25, at 705)

5 One might honor a contract even at personal disadvantage because of a supposed moral obligation to keep promises, an obligation in many cases embedded in the law of contract. In such a case the fact of the moral obligation being enforced by the law would make no difference to the existence of the obligation itself, and thus it is better to focus on cases where no obligation exists except that which might be supplied by the fact of a norm being a legal one. This might be so where a morally good rule, owing to the necessarily under- and over-inclusive nature of rules, dictated a morally bad result in this instance; or a morally bad rule might have been adopted by some legal system. In either case the substantive moral obligation drops out, leaving only the putative obligation to obey such laws just because they are laws.

6 Jr.Oliver, Wendell Holmes ‘The Path of the Law,’ Harvard Law Review 10 (1897) 457-78Google Scholar. Had Holmes not described in such pejorative terms the citizen whose views about compliance with the law are largely prudential, subsequent theorists might not have taken it to be so important to prove him mistaken.

7 Arguments for this position include Smith, M.B.E. ‘Is There a Prima Facie Obligation to Obey the Law?’ Yale Law Journal 82 (1973) 950-76CrossRefGoogle Scholar, and, in more qualified form, Donald, H. Regan ‘Reasons, Authority, and the Meaning of “Obey“: Further Thoughts on Raz and Obedience to Law,’ Canadian Journal of Law and Jurisprudence 3 (1990) 3-28.Google Scholar

8 Because it will become important later in my argument, it is worthwhile noting here that Shiner denies that prudential reasons for action are’ genuine’ reasons for action.

9 Simmons, A. John Moral Principles and Political Obligations (Princeton, NJ: Princeton University Press 1979)Google Scholar

10 I probe this issue at greater length in ‘The Questions of Authority,’ Georgetawn Law fournal 81 (1992) 95-115.

11 Whether law acts morally in engaging in such deception is another question entirely. See Larry, Alexander ‘Law and Exclusionary Reasons,’ Philosophical Topics 18 (1990) 5-22Google Scholar.

12 I expand on this argument in Playing By the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life (Oxford: Clarendon Press 1991), 124-9.

13 In discussion Shiner has suggested that it might be just as question-begging to define law without reference to the moral obligation to obey it, for that is to presuppose the absence of a moral obligation to obey the law. But that response does not work. If we define law in a way that does not presuppose the obligation to obey it, we still have the linguistic and conceptual resources to say that there is law and there is a prima facie obligation to obey it. And by use of the same linguistic and conceptual resources we can say that there is law and that there is no moral obligation to obey it. Which of these to choose will then be a function of moral argument, both sides of which can refer to the same ‘thing’ while arguing about whether its directives should be taken to be prima facie morally obligatory. But if we define law so that the definition presupposes the moral obligation to obey, then one denying the existence of the obligation is left without the linguistic and conceptual resources to describe what she believes does not carry the obligation to obey.

14 My reconstruction of simple positivism differs from Shiner’s in one important way. Whereas he takes simple positivism as necessarily particularistic or act-based (21-3, 43; on this see also Gerald, Postema Bentham and the Common Law Tradition [Oxford: Clarendon Press 1986]Google Scholar and Chaim, Gans ‘Mandatory Rules and Exclusionary Reasons,’ Philosophia 15 [1986] 373-82)Google Scholar, I maintain that there can be prudential grounds for taking rules qua rules or rules qua emanations from some institution as reasons for action. Simple positivism becomes slightly less simple when it recognizes rule-based and institution-centered accounts of the operation of law that still do not take on the baggage of normativity. Similarly, my account rejects the necessity of Austin’s notion of command and his understanding of sovereignty. Both are central to Austin, but Austin’s simple positivism is not the only version of simple positivism. If simple positivism is defined ‘simply’ as normativity-free understanding of the operation of law, then it depends neither on the command theory nor on Austin’s understanding of sovereignty.

15 Haroard Law Review 71 (1958) 593-629. See also Hart’s ‘Legal Duty and Obligation,’ in Essays on Bentham (Oxford: Clarendon Press 1982) 127-61. Hart might be read, even in The Concept of Law, as maintaining not that law is necessarily volitional, in Shiner’s (and Postema’s) sense, but simply that the existence of a legal system presupposes only that most officials will believe that law is volitional, even if they are in fact wrong to do so. This account does escape the slide into positivism, but the question remains whether the additional fact of officials’ belief in the existence of a moral obligation to obey the law is a necessary component of systems we would wish to identify as legal, and a necessary component of the concept of law. It is the very point of my dance party example, in which even the officials have only prudential reasons for taking the internal point of view, that Hart’s more modest move, even if maintaining the positivist project, remains conceptually problematic.

16 Plainly my account sees morality as a subset of rather than congruent with rationality, and thus for me prudential reasons for action compete with moral ones, and do not necessarily lose in tlult competition, even for good people.

17 Thus in summarizing anti-positivism Shiner takes it to be ‘a perversion of law that the legal order is a coercive order,’ and that ‘it cannot be contingent that law is accepted’ (269). But the ‘cannot’ is ambiguous, for we could make similar claims about dentistry. Thus we must ask whether the’ cannot’ flows from something about the task of legal philosophy, in which case it is troubling that the philosophy of something is allowed to construct the something that it is supposedly a philosophy of. But if the ‘cannot’ is about law and not about the philosophy of law, then Shiner has again embedded into the criterion for a satisfactory philosophy of law a contestable claim about the obligation to obey it.

18 Examples would be questions about the nature of judicial decision making, the role of rules and discretion, the contours of punishment, responsibility, and causation, and, certainly, the existence or not of a moral obligation to obey the law.

19 An earlier version of this Notice was delivered at the Pacific Division meetings of the American Philosophical Association in April, 1993. I am grateful for the assistance of my co-symposiasts Roger Shiner, Leslie Francis, and Kenneth Kipnis. I completed this Notice while a Visiting Fellow in the Research School of Social Sciences of The Australian National University, whose support I am pleased to acknowledge. And the final product has benefited greatly from the incisive and prompt comments on an earlier draft by Simon Blackburn and Michael Smith.