Searching for Law in Its Own Right: A Fresh Look at the Demarcation Problem

Abstract

In this work, I address the “demarcation problem” in law, which invites us to look for the essential properties distinguishing law from nonlaw. First, I introduce the main terms of the discussion, which has seen the traditional view that law is a distinctive practice with its own distinguishing properties pitted against the critical view that law cannot be associated with any such properties. I then turn to what I take to be the core of truth that the critics of the demarcation project have brought to our attention, showing that they have offered a compelling argument even against the most sophisticated treatments of the distinctive traits of law contained in the work of influential mainstream legal theorists. Finally, I argue that, despite the best critical efforts, the demarcation question stands. For, while the critical stance does have a point in challenging the search for necessary and sufficient properties of law, it does not follow that there is no justification at all for the demarcation project, once this project is understood as a circumscribed and context-bound quest for the properties that are fundamental to the core cases of law in a specific tradition.

A. Introduction

Legal practitioners and laypeople alike deal in the law or interact with it every day. Despite this daily interchange, it has proved far from straightforward to isolate the distinctive traits of law, thereby establishing what differentiates law from other institutions that regulate social behaviour and interactions. Precisely for this reason—as we do not seem to have a proper theoretical understanding of its basic makeup and specificity—theoretically minded researchers should want to know what this thing is that we are so familiar and conversant with as a tool in the practical realm of social interaction even as. This is one possible explanation of why legal theorists have long been at the task of looking for the essential properties that distinguish law from other mechanisms for governing human affairs, by thus asking what it is that makes a structure of governance distinctively, or uniquely, legal. This is the so-called “demarcation problem” in law, where the effort is to qualify a given order, institution, arrangement, or organisation as a specifically legal regulatory system, as opposed to a generically social mechanism for ordering human interactions. ¹ So, if we can succeed at this demarcation task, we should be able to gain insights into the distinctiveness of law.

But perhaps the demarcation problem is no problem at all: There is nothing mysterious about our practical ability to use the law without being able to ground it in an identifying theory. Which is why the claim that engaging with this problem is a worthwhile or sensible pursuit has not gone unchallenged in jurisprudence. In fact, critics have argued that the mystery hides its own solution in plain sight. For law is an artifact, namely, a social kind. And, artifacts exist entirely in the practical world. As such they are human creations that vary over time and across cultures. Which is why no set of criteria can be isolated which defines the essential specificity of—particularly law as—an artifact, in such a way as to distinguish it from other constructions playing similar roles in society. From this perspective, the search for defining characteristics of law, especially when these characteristics are understood as necessary and sufficient properties of law, is theoretically objectionable and practically irrelevant. On this basis, it is concluded that legal theorists should not be concerned with looking for the criteria by which to distinguish law from nonlaw and should turn to more valuable pursuits. ²

It is this debate about the defining traits of law that I will engage with in what follows. I will first introduce the main terms of the discussion, as it has unfolded in jurisprudence in recent decades. This I will do in Section 2, where the traditional view that law is a distinctive practice with its own distinguishing properties is pitted against the critical view that law cannot be associated with any such properties, since different social groups qualify the most diverse forms of ordering as legal. I will then turn to what I take to be the core of truth that the critics of the demarcation project have brought to our attention, showing that they have offered a compelling argument even against the most sophisticated treatments of the distinctive traits of law contained in the work of influential mainstream legal theorists, such as Hans Kelsen, Joseph Raz, Robert Alexy, John Finnis, and Ronald Dworkin. Nonetheless, the demarcation question stands, or so I will argue in Section 3, where I will make the case that, while the critical stance does have a point in challenging the search for necessary and sufficient properties of law, it does not follow that there is no justification at all for the demarcation project. That is too uncompromising a stance, which, I will argue, operates on an objectionable conception of law as a radically undiscriminating, conventional, and formless idea that can be applied to, and used to qualify, significantly different regulatory social practices. So, in recognising that there is much to learn from the criticism of the traditional treatment of the demarcation problem—and that we accordingly have to revisit and tone down the traditional quest for some universal constitution of law—I will suggest that there is a more circumscribed and less ambitious quest that still makes sense, a quest for properties that are fundamental to the core cases of law in a specific tradition. So, we still do have a demarcation problem—a downsized one, to be sure, but still theoretically meaningful and practically valuable. For, if we can find a set of markers that distinguish and isolate law such as it is paradigmatically practiced in a particular social and cultural milieu, we may have an entry point from which to approach law from a range of different theoretical perspectives and make practical sense of law as a multifaceted social practice. Which explains why there is value to be found in the demarcation project so qualified.

B. Distinguishing Law from NonLaw

The demarcation problem has been a recurring theme in mainstream legal theory. In fact, the controversy over the distinctive traits of law has been one of the traditional battlefields of the torchbearers for different general theories of law. Take, for instance, the dispute between legal positivism and nonpositivism, in the many forms that each has taken. One of the enduring sources of disagreement concerns the criteria for distinguishing law from other sources of practical guidance, such as political power, organised coercive enforcement, mass manipulation, etiquette, moral pressure, structured bargaining, and systematic arbitration. Legal positivists conceptualise law as a practice neatly demarcated, or conceptually separable, from morality, whilst also charging that nonpositivists conflate the criteria of legal existence with those of moral justification. Nonpositivism is accordingly seen as failing to grasp the distinctiveness of law. What this charge brings to light is just how fundamental the demarcation problem is to jurisprudence. For, if we look at the law through a nonpositivist lens, the problem is not that law cannot be distinguished from morality—in fact the nonpositivist is committed to a conceptual continuity between law and critical morality—but that law, as legal positivism conceives of it, without that connection, cannot be distinguished from other coercive political institutions and social practices. The nonpositivist too, then, sees a fundamental flaw in the positivist account of law, charging that, in failing to appreciate the need to bring an ideal dimension into the law and make it part of the very concept of law, legal positivism itself collapses law into something else: Into a coercive broad-ranging institution that cannot be distinguished from nonlegal practices based on coercion and political power. That is to say, even as legal positivists and nonpositivists disagree in a deep and fundamental way on the central question of the nature of law, they do find common ground in at least one important respect: In their shared belief in the significance of the demarcation problem. For they both agree that law needs to be conceptually distinguished from other mechanisms of social governance.

The significance of such an inquiry into the distinctiveness of law clearly emerges, for example, in the work of a leading proponent of legal positivism, Kelsen. His “pure theory of law” takes it as a basic premise that a theory of law needs to be comprehensive, and that to this end it needs to be able to isolate the “common characteristics” by which its object—law—can be distinguished from other systems of social regulation. ³ For Kelsen, the distinctiveness of law as a specific kind of institutional arrangement lies in its being a socially organised technique of indirect motivation, since it relies on punishment to achieve compliance through a coercive apparatus, one that is immanent to the law itself, regulating and authorising the use of force in a given society. ⁴ This conceptualisation singles out certain features—social organisation, systematic application, reliance on punishment, immanence, and authorised coercion—as necessary to law and distinctive of it. It is to these features, then, that we must look to in distinguishing law from other forms of social ordering.

Not unlike Kelsen, Raz takes the demarcation problem seriously. Raz understands this problem as that of establishing “in what respects legal systems differ from other institutionalized systems” introduced to govern human conduct, and so of determining which features law necessarily possesses. ⁵ Raz acknowledges that “it would be arbitrary and pointless to try and fix a precise borderline between normative systems which are legal systems and those which are not,” since the distinction between law and other normative systems may well be just a matter of degree. ⁶ However, for Raz, the project of isolating “the general traits which mark a system as a legal one” remains central to legal theory. ⁷ This is why Raz is systematic in his approach to this project, arguing that the distinctiveness of law is due to a legal system’s normativity, institutionalisation, and claim to comprehensiveness and supremacy. Raz, in other words, specifically conceptualises law as a normative and institutionalised organisation claiming to provide a comprehensive regulation of behaviour and to be superior to other normative systems. ⁸ Law is (i) normative, since it provides guidance, as opposed to setting out to describe or explain human behaviour; it is (ii) institutional, since it not only consists of, and is established by, practical standards but also sets up institutions for creating and applying these standards; it is (iii) a system of norms claiming to be comprehensive, since it acknowledges no limitation in scope (there is no area or kind of conduct the law excludes as subject to its own guidance or regulation); finally, (iv) it claims supremacy, since it presents itself as possessing the “authority to regulate the setting up and application of other institutionalized systems by its subject-community.” ⁹

Nor is the interest in the demarcation problem exclusive to legal theorists of positivist persuasion. In fact, the distinctiveness of law has been a specific concern of Alexy, Finnis, and Dworkin—all of whom are influentially nonpositivist theorists—among others. ¹⁰ Albeit on different grounds, Alexy, Finnis, and Dworkin argue that the properties which legal positivists consider essential to, and distinctive of, law are limited to law’s real, or factual, dimension, thereby excluding its ideal, or critical, dimension. This is wrong, Alexy argues, since “law necessarily comprises both a real or factual dimension and an ideal or critical one.” ¹¹ Accordingly, the distinctiveness of law will have to be located in both dimensions: The factual, with traits explaining its authoritative issuance and social efficacy, and the ideal, with traits explaining its claim to moral correctness. ¹²

This general premise leads Finnis to maintain that law can be understood as a distinctive practice only insofar as it is not defined exclusively as a set of standards and institutions “directed to reasonably resolving any of the community’s co-ordination problems,” issued by “an effective authority,” and “buttressed by sanctions in accordance with the rule-guided stipulations of adjudicative institutions.” ¹³ A further element that distinguishes law from nonlaw lies in the law’s interest in the common good of the governed community. On this conception, then, what distinguishes law from other forms of social ordering comes down to its being (i) prescriptive, (ii) coercive, and (iii) authoritative, as well as to (iv) its serving as a tool of coordination and (v) its being concerned with the common good. Some of these traits are merely structural—this applies in particular to law’s (i) prescriptiveness, (ii) coerciveness, and (iii) authoritativeness; others are functional—this is the case of trait (iv)—or substantive—trait (v), which is revealing of the fact that, on this conception, law cannot be detached from the common good.

In a different vein, Dworkin consistently regards the explanation of the conditions under which the public use of force is legitimate as the key to the demarcation problem. ¹⁴ Rather than presenting the quest for the distinctive traits of law as an attempt to determine what law is in the abstract, Dworkin is concerned with the practical question, “Which rights and obligations do legal practices generate?” ¹⁵ Accordingly, for him the demarcation problem takes the shape on an investigation into the fundamental features of the specific kind of rights and obligations associated with, and engendered by, the existence of a system of law. ¹⁶ In turn, legal rights and obligations are argued to result from a practice—the law—that essentially comprises social facts, institutional arrangements, and political principles. These facts, arrangements, and principles, however, are hardly transparent, or self-evident, for their substance can only be grasped by means of hermeneutical activities the nature of which is both constructive and evaluative. This is why Dworkin characterises legal rights and obligations as interpretive concepts, namely, concepts that become perspicuous only insofar as hermeneutical processes are applied to them. On this basis, Dworkin concludes that it is interpretation, especially when understood as a constructive and evaluative process anchored to certain institutional arrangements, social facts, and principles of public morality what not only establishes the contents of a legal system—which substantive legal rights and obligations those living within a given jurisdiction have—but also distinguishes law from nonlaw. For Dworkin, then, law distinctively is a peculiar, qua historically conditioned, politically coloured, and principled, interpretative practice. That is to say, law has the distinctive shape of an indissoluble amalgam of social facts—these are formal and structural elements—and political values—these are substantial considerations. This means that law can neither be collapsed into an institutional framework—a complex of practices and decisions framing social facts along a timeline that runs from the past to the future—nor can it be understood to consist only of the scheme of principles that justify that framework. ¹⁷ By contrast, it takes a duo to make law, which, therefore, is best conceptualised as the compound of the facts and practices that frame our polities, on the one hand, and the interpretation of those facts and practices in light of certain principles of political morality, on the other. ¹⁸

Crucially—and this is the broader point I am making here—for all the fundamental disagreements the positivist and nonpositivist legal theories so far introduced may have when it comes to conceptualising the law, they all converge on at least one point. They all agree that conceptualising the law requires one to systematically engaging with the demarcation problem, by thus taking as core to jurisprudence the task of isolating the distinctive features of law. But not everyone agrees on the significance of the demarcation problem. A number of legal theorists have specifically called it into question, arguing that distinguishing law from nonlaw accomplishes nothing of great theoretical or practical value. In fact, on this critical view, it does not even make sense to set about this task, since no arrangement of recognisable and discrete properties exists that marks off the legal domain as distinct from other kinds of social governance. ¹⁹ In making this claim, the critics of the significance of the demarcation problem argue that law can neither be conceived as a discrete category nor be intrinsically kept apart from other kinds of social governance by virtue of the fact that law is a human artifact—a social kind. And, as the argument goes, artifacts and social kinds have no specific “essence,” their identity being fixed merely by conventions. The same applies to law, which accordingly can only be distinguished from other social and normative practices on a conventional basis: Law comes into existence whenever a group of practitioners and officials conventionally identify a given type of social ordering as legal. ²⁰

This statement is paradigmatically defended in Brian Tamanaha’s work, where it is claimed that whether any norm or system is legal ultimately depends on its use: Law is established by the use to which the word “law” is put. From this perspective, underpinned by what Tamanaha describes as an “unflinching conventionalism in the identification of what law is,” what counts as law is simply whatever regulative practice is referred to as such within its own community of competent speakers. ²¹ Therefore, the main question in jurisprudence is not the metaphysical, or ontological, question, “What is law?” or even the ascriptive question, “What counts as law?” Rather, the main question in jurisprudence is the pragmatic question, How do people in their own context talk about law and make use of what they refer to as such? On this conventionalist approach, then, it makes no sense to apply oneself to the demarcation problem, for ultimately that problem assumes that law is an ontological or natural kind, rather than an artifact. In fact, it is only by making that assumption that we can treat law as having a distinct essence and we can sensibly set out in search of a set of universal and necessary properties that law, and only law, is claimed to possess.

For these reasons, those who take issue with the demarcation problem see the effort to identify the law through a set of essential and distinctive traits as an enterprise that is theoretically insignificant and practically worthless. This claim is specifically made by Brian Leiter. ²² On the theoretical side, what Leiter sees is that nothing about the traits identified as uniquely distinctive of law is grounded in any kind of principle. The traits are instead ad hoc, referring not to anything that can reliably be shown to be intrinsically legal but to our use of the term “law.” On the practical side, Leiter argues that even if we could come up with a list of uniquely identifying traits of law through which to objectively distinguish law from nonlaw, there would not be anything useful we could do with such a list. For, unless we make the mistake of conflating what the law is with what ought to be done, we would still not have addressed the fundamental practical question involved in that conflation, namely, the question, What ought we to do?

To summarise, those who dismiss the significance of the demarcation problem recommend that we give up the project of looking for intrinsically legal characteristics. For one thing, no such characteristics exist, since law can be distinguished from other normative systems only on conventional grounds, not on any conceptual grounds. For another thing, there is no practical justification for putting in place a general framework that keeps law separate from nonlaw.

C. Tacking Stock and Starting Afresh

In the previous section, I defended the claim that interest in the demarcation problem tends to polarise the debate in legal theory. While the arguments offered against the traditional approach to the demarcation problem strike me as robust and insightful, I cannot say as much about the basic implication drawn by the proponents of those arguments, namely, the twofold claim that (i) law has no distinctive trait and (ii) any practice conventionally labelled as legal should be considered an instance of law. The staunchly conventionalist stance associated with the critique of the quest for the distinctiveness of law means that any theoretically sound and practically valuable conceptualisation of law is necessarily undiscriminating and tolerant. In what follows, I intend to push back against this assertion. In a nutshell, thus, the discussion that follows—specifically in Section 3.1—explicitly acknowledges, and is shaped by the recognition, that the arguments offered against the significance of the demarcation problem are powerful, insofar as they cast doubt on the traditional approaches to the distinctiveness of law. Even so, I will take issue with the claim that (a) it is meaningless to go in search of properties that are constitutive of law, and so that (b) we should rest content with a permissive concept of law. This is why I intend to lay the foundations—in Section 3.2—for a novel engagement with the demarcation problem, one that appreciates the core of truth inscribed in the arguments made against the traditional search for the distinctive traits of law and yet remains committed to both looking for the distinctiveness of law and defending a discriminating concept of law.

The argument I will be making in what follows, in short, is that appreciating the critique of the traditional stance does not mean that we should thereby write off as pointless the quest for the distinctive characters of law. It rather means that we need to (a) introduce some caveats and conditions if such a quest is to yield fruit, thereby substantially reframing the traditional approach to the demarcation problem, and (b) redirect the search for the fundamental features of law. These features, I will argue, are located in the characteristic mode of law’s existence, or in the distinctive approach that law calls for. As I will also argue below, this way of locating these features has not yet been sufficiently and systematically explored in traditional jurisprudence, which has instead focused on combinations of structural, functional, and substantive properties.

I. A Fresh Understanding of the Demarcation Problem

The criticisms that have been made against the significance of the demarcation problem are meant to support the radical suggestion that we ought to give up on the idea of searching for any distinctiveness of law. As powerful as those criticisms may be, however, they do not support that conclusion, or so I believe. But let us first consider how the criticism forces us to rethink the standard approach to the demarcation problem, by also freeing it from a set of assumptions that, as the critics argue, are untenable.

To begin with, as the critics point out, the search for the distinctive traits of law has traditionally been understood as a search for an arrangement of universal traits, which, more often than not, have been understood as necessary and sufficient conditions for the existence of law. ²³ As the criticism levied against the traditional approach to the demarcation problem has underscored, however, there are theoretical reasons for calling into doubt the view on which artifacts are distinguished by universal, or necessary, properties. Those reasons support the stance of those who play down the significance of the demarcation problem, as it has traditionally been approached, by arguing that law is best qualified not just as a human product but also, and more specifically, as a malleable institution whose instantiations are plural and susceptible to material, cultural, and social contingency.

I also agree that the social nature of law can be seen as a presumptive reason for staying away from the search of universal truths about, and necessary properties of, law. Indeed, it strikes me as beyond reach to isolate features shared by all instances of law in every society. Admittedly, for some purposes, it may serve us well to rely on a single term—law—to refer to the mechanisms of wide-encompassing social ordering that have been put in place in different epochs in the most diverse societies. However, it is questionable to suggest that all those mechanisms should share a single set of traits. Primitive institutions for regulating social interactions within small groups, for instance, are likely to have little, if anything, in common with sophisticated normative orders consisting of multi-layered mechanisms of legislation, administration, and adjudication that apply to societies comprising groups with different ideologies, cultures, and worldviews. Hence, the project of picking out properties common to such remarkably disparate mechanisms of social control strikes me as unachievable, illusory, and theoretically dubious. I would, therefore, suggest that the quest to isolate the distinctiveness of law can be valuable and sound only if it gives up on the idea of encompassing all legal systems set up in the real world across the entire arc of time. These various legal systems display features that are plural and heterogenous, and the overlap between them is not so significant as to warrant a statement of universality.

These remarks are fundamentally inspired by, and owe much to, the criticisms of the traditional approach to the demarcation problem introduced by the critics of such an approach. What those criticisms indicates, however, is not that the quest for the distinctiveness of law is illusory but rather that, if we are to go about identifying the distinctiveness of law, we need to fundamentally change course. So my suggestion here is that, in addressing the demarcation problem, we should acknowledge that the search for what is specifically and uniquely legal can be a theoretically legitimate and practically sensible project only insofar as it aspires to isolate traits that are (a) fundamental to what, (b) in a given tradition, time, and context, is widely regarded as (c) the paradigmatic, or central, case of law. The revised three-pronged approach just introduced enables one to rescue the project of identifying the distinctiveness of law by identifying a concept of law that is considerably amended yet fully recognisable. Accordingly, one will be in the position to respond to the objections made by those who argue against the significance of the demarcation problem (once this problem is tackled on novel bases).

Let me then expand on each of the three prongs in this revised approach to the distinctive properties of law. The first revision (a) tells us that, while the properties we are looking for are not to be understood as universal, necessary, sufficient, or exclusive to law, they are nonetheless fundamental to it. Here, “fundamental” is understood as a less demanding standard when compared to what is “universal,” “necessary,” “sufficient” and “exclusive.” This means that a fundamental property is a trait that is paradigmatic of law and particularly salient as markers of law rather than of other social practices and normative institutions set up to govern human interaction. ²⁴ A fundamental character is, thus, to be understood as unique to law, to be sure, but not in the sense that it is necessary to law, where nothing can count as law that lacks this trait.

Just as the traits we should be looking for are not to be understood as necessary, they are not to be taken as all-encompassing in scope, either, and this takes us to the second criterion (b). In other words, if we want to identify a set of traits that are distinctive to law, we have to relate them to a given social setting, legal tradition, and historical context. The legal practices in use in a certain society at a given point in time may well differ notably from what other social groups qualify as legal practices in a distant age. This variety and changefulness of law, ultimately due to its being an artifact, means that there may well not be any properties that all legal systems share regardless of where we find them or when they came into being. However, even with this contingency of law, we can still isolate what is distinctive of law in a given society at a given time, and so what uniquely counts as law in that context. And this is therefore how we ought to go about identifying distinctive traits: Not in a vacuum, which makes it easy to pick out a set of universals superimposed on all legal systems regardless of time and place, but in the reality of law such as it exists within a specific tradition, in its own time and place. In conceptualising the distinctiveness of law, in other words, we need to zoom into a tradition, taking a snapshot of the law that is not so abstract that it captures all law at all times—and therefore none at any time—but is anchored to a specific set of practices.

This makes the inquiry into the distinctiveness of law inevitably a situated inquiry making no attempt to paint a coat of generality over the multifaceted and changing landscape of law such as it exists in history and across the world. The approach is therefore nonmetaphysical, rejecting the notion, embraced in influential quarters of traditional legal thought, that an ontological endeavour to unearth truths holding in all possible worlds will yield a theoretically meaningful account of the distinctiveness of law. It cannot, precisely because it fails to appreciate that what is specifically legal in one traditional may well turn out to be nonlegal in another. In the view of those who criticise the theoretical significance of the demarcation problem, however, this variability and variegatedness of law diminishes the importance of that problem, precisely because it forces the inquiry to concern itself with particular practices in this or that legal tradition rather than with the law as a broad practice or entity encompassing all that has ever been termed “law” or which could be so described. On this view, the specificity of the resulting inquiry is such that we no longer have any real use for it, since the accounts it can yield can isolate specific cases of law but not the law as a general, all-encompassing concept, thereby depriving the inquiry of theoretical significance and practical usefulness. But, as I am suggesting, that is untenable: Precisely because any universal conceptualisation of the distinctiveness of law is bound to tell us little, if anything, about this or that legal tradition in its own context, we have to look at each such tradition in its own context. And in doing so we importantly get a description that gives us a twofold advantage. For one thing, we gain the ability to look at practices in their own context—a context at once social, political, institutional, historical, cultural, intellectual, and economic—and perspicuously distinguish, in that context, what is legal from what is not (as well as to distinguish the practices that can be considered genuinely legal from those that are arbitrarily and illegitimately so labelled). For another thing, a treatment of the demarcation problem so conceived puts us in a position to better understand the legal culture in its own time and society. ²⁵

Finally, I will turn to the third prong in the revised approach to the demarcation problem I am outlining. Which is to say that, in searching for the distinctiveness of law, (c) we need to look at the core cases of legality. In other words, in our quest to identify the fundamental properties of law we cannot attempt to encompass everything that in a given culture might count as law. This is the case in part because that is impractical, if not unachievable, in part because, such an exhaustive menu of legally distinctive traits would not afford much insight into the law. The reason why such an all-encompassing account would not be too insightful is that it would gain the virtue of completeness at the cost of hopeless abstractness, by thus failing to describe much of what we would recognise as an actual legal order, either historically or in the current landscape. Hence the need to revise the demarcation problem in such a way that we should only be concerned with the paradigmatic, or typical, instantiations of law, namely, what is well-established as law—mature, refined, and sophisticated. ²⁶

This focus on the core cases of law, however, should not be taken to mean that in tackling the distinctiveness of law we are to concern ourselves exclusively with the fundamental properties of state-enacted law. True, that has been the primary concern of a number of traditional legal theorists, on the understanding that, in our world, that is the most sophisticated instantiation of law. ²⁷ But, in the postnational societies we currently inhabit, an exclusive focus on state law seems to be unjustifiably narrow and ultimately misleading. In engaging with the distinctiveness of the central cases of law, then, we need to extend the idea of paradigmatic instance of law to legal systems that depart from the model of state law. In fact, in the current landscape, a state-centric approach to the demarcation problem is theoretically untenable, for we have an abundance of law, once the word “law” is understood in its central meaning, that is not state-enacted and yet is fully developed. So, in attempting to identify a set of distinctive properties of law, we need to include state law but not confine ourselves to that form of law.

II. A Distinctive Mode of Existence and Operation

So far, I have argued that the standard approach is untenable, since its insistence on necessary and sufficient properties applicable to all law at all times can only yield a too abstract, or even altogether empty, account of the distinctiveness of law. I have also argued that we can correct for that defect by reframing the problem with a focus on the traits of law that are fundamental to, or constitutive of, its core cases in a given context. Thus, we need to start from some context, but how do we choose one?

What I now suggest is that we should take modern law as our main context. In this Article, by “modern law” I mean the paradigm of law that is fundamentally shaped by such comprehensive worldviews as the Enlightenment, modernist humanism, critical rationalism, liberalism, individualism, political contractualism, and egalitarianism. These modes of thinking, which are conceptually distinct and hardly reducible to one another, uphold the basic principle that in their collective lives individual subjects should be able to make their own choices, free from illegitimate interferences of others, since this is essential not just to their personal fulfilment but also to their sense of self-respect and, ultimately, to the recognition of their distinctive ethical standing. In turn, this principle is central to the legal and political arrangements of the western world today. Correspondingly, what I call here “modern law” provides a context conceptually linked to encompassing doctrines that are not just widespread but also imbedded in our societies, for they underpin values, such as moral autonomy, individual independence, personal freedom, and fundamental human rights, which are the cornerstones of our collective lifestyle. True, nowadays those values are not generally accepted and uncontested. However, in spite of the plurality of their preferences, interests, cultures, and backgrounds, most individuals and social groups inhabiting the part of the world we live in would not be prepared to give those fundamental values up.

Despite the pervasiveness of modern law in contemporary societies, the exclusive focus on such a paradigm of law may be perceived in some quarters as excessively narrowing down the scope of the study of the distinctiveness of law. But there are two considerations that are worth making in this regard. The first of these is that modern law, as it is understood here, is actually not narrow: It covers a vast legal landscape, both national and international, with a wide array of different kinds of practices, institutions, and arrangements in different communities—not just in the West, but also across the whole world. So, the insights we can gain from a study so focused apply to a plurality of systems of governance affecting the lives of billions of people. That is to say, as much as modern law may be a context-specific case study, it is a case-study of broad scope. From this flows the theoretical significance of the understanding of the distinctiveness of law that can be gained from it. The second consideration is that my choosing one context as object of study does not prevent others from subsequently turning to different contexts. This shift would make it possible to consider any overlap between the two, so that from such a comparative analysis one might be able to extract further insights into the distinctiveness of law. What this second consideration also underscores is that in situating the inquiry into the distinctiveness of law—in asking one to make the inquiry context-specific—the revised approach does not in any way commit one to choosing an “appropriate” context, a context in which the law needs to pass a test of justice, or moral goodness, consistent with rational discourse in order to count as law. True, the inquiry being carried out here focuses on a legal paradigm of wide currency shaped by a set of broad and influential ideals. However, it steers clear of the suggestion that modern law is an instantiation of “virtuous law.” Rather the point of the inquiry is to see how law, in a given context, can be distinguished from nonlaw, where we may find out that, as so often it happens, what counts as law in that context may even depart dramatically from fundamental standards of justice and rational morality. In short, even with modern law as a specific focus of inquiry, the revised approach may end up identifying as law what might otherwise colloquially be referred to as the “awful but lawful.”

I have so far argued that, if we want our search for the distinctiveness of law to be a meaningful project, we need to anchor that search to a particular legal tradition. Correspondingly, we need to part with the idea of necessary and universal features of law, by thus instead looking for features that are fundamental to law in that tradition and paradigmatic of it. I have also stated that the “demarcation critics” have a point: None of the sets of properties thus far claimed to be uniquely legal provide the key to the distinctiveness of law. But is that to say that there is no point to the demarcation problem itself? What I am now arguing is that, contrary to what the critics conclude, there is. To see that, and restore the problem to a position of significance, I now need to establish what distinguishes the core instantiations of law in a live setting, which in this inquiry will be that of modern legal systems.

Two caveats are in order here. To begin with, the proposed engagement with the demarcation problem is grounded in the three-part premise that the project of finding out law’s distinctiveness is (i) neither the attempt to determining the essence of law, namely, to singling out law’s essential properties—the necessary and sufficient conditions of law’s existence—as the torchbearers for the traditional approach claim, (ii) nor the effort to establish how law is used, namely, to determine what the conventional understanding of law is, by thus exposing which conventions govern the use of law within a social group, as the advocates of the critical stance argue, (iii) nor the enterprise aimed at fixing the meaning of the word “law,” namely, at ascertaining what a given sign—law—stands for. Conversely, I endorse the premise that (iv) spelling out the features constitutive of law requires one to embark into the conceptual construction of law.

In turn, setting forth a conceptual construction of something, as I understand this endeavour, means to account for the unique typology of that something, by thus differentiating it from at least some of the similar, related, and yet distinguishable entities. That is, conceptualising the distinctiveness of law leads one to determine how law, qua specific system devised to programmatically guide the conduct within a community, differs from other types for social governance that overlap, and display similarities, with law, but ultimately are irreducible to law itself. Which project invites one to establish the—hitherto concealed—principles, predicates, or traits that, in their combination, frame law as a distinctive idea, namely, as a construct that is marked off from other, possibly overlapping, orders pertaining to the same general category the law is a member of—this being the category of “system governing human interactions.” ²⁸ Accordingly, the quest for the distinguishing properties of law carried out below is meant to sharpen our awareness of the—albeit different kinds of—orders put in place to govern social exchanges, by thus locating a specific typology of social governance—the law—within a more general and comprehensive class—the class comprising all the mechanisms for the governance of social relations, inclusive of organised coercive enforcement, mass manipulation, moral pressure, structured bargaining, and systematic arbitration, among others.

The second caveat is this: What follows is meant to be only a first stab at the problem so reframed, rather than a systematic and exhaustive analysis of it. In this vein, let me begin to flesh out an approach to the demarcation problem by introducing a working hypothesis. Which is to say that, in looking to identify the fundamental properties of the central cases of modern law, we need to look at the law’s unique mode of existence. That is, we should consider the way in which the law typically operates, instead of attempting to identify the law by its structure, function, and content. ²⁹ My working hypothesis, in other words, is that modern law has a modus operandi that cannot be reduced to the mode by which nonlegal practices and mechanisms operate in governing social interactions. More specifically, I will argue that the law’s specific mode of operation hinges on the agency of the members of the community the law applies to: What distinguishes law from other systems of social ordering is that (a) law acts as a device through which the members of a social group can autonomously decide what they should all have reason to do, and that (b) law can systematically act as such a device—or at least purport to do so—precisely because it leverages our subjectivity as agents of a sort I will shortly be describing.

This working hypothesis is a departure from three variants of the traditional view about the distinctiveness of law. The first variant asserts that what marks law apart from nonlaw comes down to its structure. This is a view exemplified in the attempt to construct law as a regime of general instructions that apply to a sweeping range of behaviour over a significant period of time. ³⁰ The second variant states that law can be distinguished by its function, such as the function of mediating between conflicting concerns and interests, for instance. ³¹ The third variant claims that the law’s distinctiveness is owed to its content. On this view, law is best seen as a set of standards designed to protect a closed list of basic values, principles, goods, and interests by making their breach subject to penalty. ³² I am thus suggesting that neither those variants nor, more generally, any combination of structural, functional, and substantive elements can be used to distinguish law from nonlaw. Instead, we should understand law as a distinctive manner of practical guidance. This is not to say that there is nothing to be learned from investigating the structure, content, or function of law, asking such questions as (i) What does the law typically look like?—a question about the structure, or form, of law—(ii) What does the law fundamentally direct us to do?—a question about the central content, or substance, of law—and (iii) What is law characteristically for?—a question about the function the law serves in society. However, none of these questions will help us make much headway in demarcating law from nonlaw. Instead of asking these what questions, those engaging with the demarcation question should ask a how question: How does law, in its core instantiations, distinctly govern human conduct? Let me explain.

In setting up the working hypothesis that we can best understand the distinctiveness of law by inquiring into its specific mode of existence and operation—I noted that this mode of operation has to do with the way the law interacts with its addressees, meaning their agency. This nexus can be further expanded upon with the help of two theoretical frameworks, namely, Lon Fuller’s and Jürgen Habermas’s. ³³ To begin with, Fuller’s legal thought discloses a fundamental connection between law and the agency of its addressees. ³⁴ The idea here is that even if the law sets out obligations—even if its directives require compliance no matter what anyone thinks about them—the addressees of these directives are not conceived as passive recipients of mandatory rules that they are to unthinkingly follow. For that would amount to reducing law to a command-and-control system and the law’s addressees to means to the ends pursued by public officials. Law’s addressees may qualify as subjects insofar as the law applies to them and can enforce its own directives, but they cannot qualify as legal subjects proper unless they likewise engage with the law as purposive, free, and responsible agents. ³⁵

I would now like to suggest that if we accept Fuller’s account of legal agency as purposive, free, and responsible, and so conceive of legal addressees as individuals capable of self-direction and self-ownership, then we have a building block for reconceptualising the distinctiveness of law. We can see this by extracting from that description of legal agency its implications in three steps as follows. First, we have two models of agency: The agent as a plain subject, or follower, of rules, and the agent as a purposive, free, and responsible individual who engages with those rules by responding to the reasons proffered for them. Second, from these two models of agency we get two ways or modes of relating to practical directives: A “plain-compliance” mode, where agents simply do what a system of social ordering directs them to do, acting as required; and a “reasoned-compliance” mode, where agents follow the relevant directives not mechanically but by engaging with it, that is, by taking into account their grounds, the basis on which each directive is issued and the justification for it. Third, modern law specifically and distinctively refers to the latter mode of relating to practical directives, namely, it relates its addressees by treating them not as subjects who are expected to act as required, but as agents proper.

To elaborate on these main steps, on the one hand, we have orders operating in a plain-compliance mode. In this mode, a system of social ordering treats its addressees in purely behaviouristic terms as individuals who simply respond to schemes of incentives and disincentives, regardless of the reasons they may have for behaving that way. That is not law’s mode of operating. On the other hand, we have orders operating in a reasoned-compliance, or guidance, mode. In this case, the order from which practical directives stem treats its addressees as individuals with full agency. Modern law is best conceptualised as a system operating in a reasoned-compliance, or guidance, mode. That is to say, in drawing the distinction just introduced—the distinction between plain-compliance and reasoned-compliance mode—we have a way of distinguishing law from nonlaw. Otherwise put, we can recognise a system of social ordering specifically as law by the way it conceives of and consequently relates to its addressees: Not in plain-compliance mode, where the problem is simply how to get people to obey or how to use them as means to a societal end or policy goal, but in reasoned-compliance, or guidance, mode, where people are understood as having the essential capacity to act on the basis of reasons that can be addressed to others equipped with the same capacity. In other words, in guidance mode—as modern law paradigmatically is—a system of practical directives understands individuals according to their own self-understanding as self-determined, self-directing agents. Therefore, it treats them with directives that (a) are issued through a process of collective deliberation consistent with the deliberation that individuals engage in as fully capable agents, and (b) are meant to guide their conduct, rather than compel them to act as prescribed, by thus appealing to the reasons justifying the issuance of the directives themselves. ³⁶

On the proposed approach to the demarcation problem, then, law is specifically conceptualised as a form of social governance fundamentally bound up with purposive, free, and responsible agency. What in this construction distinguishes law from other institutions of social control is therefore law’s specific connection with a certain form of agency. Inherent in this connection is the idea that—modern—law, if it is to be recognised as such in distinction to other systems of social control, must treat its addressees as participants in a distinctly constituted mode of social existence, that of free individuals who understand themselves as responsible for the decisions they make with respect to what law demands of them, namely, individuals who can engage in purposive action, understand and follow practical standards, and deliberate about their courses of conduct.

Inherent in the agential nexus just outlined is a further distinctive trait of law: Its essentially bidirectional and interactional mode of functioning. For, in contrast to the plain-compliance mode of social governance—under which directives are imposed from the top down, and those to whom they apply are simply expected to act as prescribed, passively and without asking what the reasons are for those directives—the reasoned-compliance, or guidance, mode distinctive to the law works in both directions. It works as a top-down system, under which legal directives are established authoritatively and are singled out as demands that ought to be complied with. And, it works as a bottom-up system, under which (a) the authorities are accountable to the very people to whom the directives apply, and (b) these people—the law’s addressees—are expected to have a role, however indirect it may be, in shaping the contents of those directives. There is therefore a reciprocity, or mutuality, in the way the law interfaces with its addressees. That is the case because of the way the law understands those addressees: Not as passive compliers expected to follow the directives of those in power, regardless of the reasons for those directives, but as active participants who need those directives to be supported by reasons and who do have a part in shaping the society governed by the law as a device for guiding the action of participants in the system. ³⁷ Apparently, the agential nexus should not be taken to mean that there is no room for top-down social ordering in modern law. It rather means that in modern law no governance mechanism can qualify as law if it is set up that way, as an instrument “for promoting the interests of a ruling elite,” ³⁸ where the rest of the population is a mere means to the ends of that rule-making elite. ³⁹

From the mutuality of law inherent in the nexus the law distinctively establishes with its addressees, it further follows that the power through which legal directives are issued and enforced must necessarily be a distinctive kind of power—legitimate power. This statement, which is arrived at by working from the idea of an agential nexus—the two-way connection the law establishes with its addressees understood as reasoning agents—and by extracting from this nexus the principle of mutuality inherent in it, can be expanded on by bringing in Habermas’s account of law, and in particular his thinking on the relation between law and political power. For Habermas argues that law is at once inextricably bound up with political power and fundamentally distinct from it. On the one hand, law cannot be separated from political power, since law, at least on a sociological account of it, consists in the collection of rules and practices through which political power is yielded. But, as Habermas also argues, as much as power, with its underlying instrumental logic, may always be at work, it cannot account for the whole of law. For, if we reduce law to the strategic use of power, by thus conflating law and power, we will end up with an impoverished account of law and its place within a society, thereby erasing the specificities of law. What in this way we end up erasing out of the law is, more specifically, its distinctive way of coupling power with legitimation.

Thus, law, on this account, is not the same thing as power—the use of political power as such—but rather refers to the legitimate use of such power. And it is through rational discourse that the law seeks to achieve such legitimacy, by means of communicative engagement with and among all of the participants involved. In this conceptualisation, law, and the practices through which it unfolds, is part strategic rationality and part communicative rationality: It is underpinned, on the one hand, by the logic of sheer power and strategic action, and, on the other, by the principles of communicative action, through which law seeks to justify its own directives. ⁴⁰ If we take out the communicative side of law, we will flatten it into a strategic enterprise based solely on instrumental norms. That may describe some systems of social governance but not the law as one such system. If we take out the strategic side of the law, we will have obtained the picture of an enlightened, critical, or rational ethics, whose principles may even lack any enforcement mechanism. Here, too, it would be difficult to even conceive of a system of law, as distinct of an arrangement of ethical principles. So, law combines both of these elements—the strategic and the communicative—and therein lies its distinctiveness, the feature in light of which it can be distinguished from other mechanisms of social governance.

Now, if the law is the glue that binds raw political power with discourse, then, on the political-power side, coercion figures prominently in law and, on the discourse side, law cannot be conceived independently of practices of rational communication, deliberation, and argumentation, whose standards are therefore essential to law. From this dual understanding of law, two important implications follow: The first of those implications has to do with the coercive dimension of law, whilst the second one concerns the status of legal participants, the way they are treated under the law, and the nature of the legal process itself. Let me elaborate.

First, coercion can be claimed to be a salient feature of modern law by virtue of the connection holding between—often paradigmatic instances of—law and—often political—power. ⁴¹ The reliance on—the threat of—sanctions that can be coercively imposed on those breaking the legal directives is a pervasive—if not altogether omnipresent—element of modern legal systems, which characteristically allow for the possibility that at least some subjects are coerced into compliance, as opposed to complying with the legal directives spontaneously. On this basis, coercion should be considered a fundamental property of the paradigmatic instances of law. This does not mean, though, that typically the law forces sanctions on its addressees, by thus goading them into acting in accordance with its directives. By contrast, as it was noted in the context of the discussion of legal agency, the law engages with those living within its jurisdiction as free, purposive, responsible, and rational agents. As a result, the detriment that the law threatens to cause to those who break its prescriptions are aimed at providing individuals with justificatory reasons for action, namely, with normative grounds for acting as it is legally required and for avoiding to act in legally prohibited ways. And these are reasons and grounds that legal subjects will be able to recognise by virtue of, and by relying on, their rational capacity. In its coercive facet, then, the law guides people—also by resorting to coercion, actual or potential—as distinct of pushing its addressees around. Correspondingly, the kind of coercion and threat of detriment fundamentally associated with, and highly concentrated in, law is of a specific kind: It is not the sheer power to impose sanctions, but rather the legitimate, qua rational, power to do so, what distinguishes law from nonlaw.

Second, if law is predicated on discourse and communicative action, it follows that the law’s addressees enjoy equal standing under the law—the recognition of each participant’s equal standing being an essential precondition of any discursive or communicative practice, as such a practice is conceptualised in Habermas’s work. Related to this, these practices mean that those who participate in them are treated impartially. For discourse is itself constitutively impartial to its participants, with the group of participants being inclusive and so encompassing not only those who do participate in the discursive practice of law but also anyone who is recognised as being capable of doing so. Finally, if the legal process is essentially discursive, unfolding through communicative action, it must also be transparent and public, since nothing counts as discourse if it is private or otherwise hidden from view. Importantly, this discursive element that underpins the legal enterprise should not be taken to mean that discourse, as practiced in shaping the law, never breaks down into something other than discourse—something that is neither premised on the equal standing of participants, nor impartial, nor transparent and public. Nor should we take it that law has nothing to do with power: It does, precisely because it distinctly rests political power on a discursive foundation, so as to confer legitimacy on the use of such power, whilst steering clear of pure discourse ethics. But the discursive element inherent in the law does mean that discourse—along with the accompanying standards of communicative action, deliberation, and argumentation—is constitutive of law, and so that it would not be possible to recognise as law any practice that at a fundamental level did not (a) acknowledge the equal standing of participants in the practice, (b) give their concerns impartial consideration, and (c) ensure that the process for establishing a common framework for mutual engagement among participants is fundamentally public and transparent. These constitutive traits of law importantly contribute to distinguish law from other from other forms of social governance. ⁴²

It is worth reiterating here that this is nothing like a universal account of the law but is rather an account of the law in context, and, particularly, of modern law. Once we view the law in that context, we should be able to appreciate that the context is essentially discursive and that it distinctively shapes the way in which the law interfaces with its addressees: Not by fiat—issuing directives and exacting compliance with them—but discursively, that is, by engaging with those addressees as agents capable of rational discourse and deliberation. Which in turn means that, while modern law does act authoritatively and conclusively in settling disputes and controversies and enacting public policies, it does so consistently with the three principles that flow from its distinctly discursive modus operandi: The principle of equal standing, the principle of impartiality, and the principle of transparency and publicity. The principle of equal standing, as it operates in a legal setting, means that all legal addressees are owed equal respect in shaping the law, so long as they engage in discourse proper. The principle of impartiality stands for the claim that legal practices are not designed to favour any one voice over any other. The principle of transparency and publicity means that the decision-making involved in enacting laws and setting public policy, broadly construed to include anything that is of general interest, needs to itself be public and transparent. To be sure, different legal systems will implement these principles in different ways. Nor will the traits that flow from these principles have the same weight in each such system. But, as I have argued, the principles of equal standing, impartiality, transparency and publicity are nonetheless essential to distinguish the law from nonlaw. Related to this, a system of social governance failing to incorporate those principles cannot count as a legal way of ordering a society.

D. Closing Snapshot

Does the attempt to distinguish law from nonlaw make any sense? That is the basic question behind the analysis carried out in this Article. The answer to that question, as discussed, depends on how we approach to the whole demarcation problem. There is a traditional approach bent on identifying a set of necessary and sufficient conditions satisfying which an artifact qualifies as law. On this approach it has been claimed that the distinctive traits of law can be found in its unique structure, function, or content, or in a combination of these three elements. If this is the approach, we choose to take to the demarcation problem, then we do have to agree with the critics: Its universalistic sweep makes the demarcation project almost meaningless. But we can also take a revised approach that answers the critics’ concerns by tackling the problem in a way that promises to be theoretically insightful. This is a context-specific approach that (a) looks at the law not in a vacuum but in the context of its own history, tradition, and society, and that accordingly (b) does not purport to provide a litmus test of legality applicable to any system of social governance but rather focuses on the distinctive traits of some paradigmatic instantiations of law.

It is therefore only in context that we can meaningfully identify something like a set of properties unique to law. In this work, I focused on a specific context: The one provided by the modern legal tradition. I did so not because of any assumption that there has never been any historical example of law outside this context or that there will never be one in the future, but because this is a pervasive context. This promises to make the proposed inquiry valuable, for in setting up a contrast between modern law and the pervasive instantiations of plain-compliance model of social governance, we can sharpen our understanding of both objects of inquiry. Such an inquiry has also the potential to be insightful for several additional reasons. First, and most obviously, my choosing one context in framing the inquiry into the distinctiveness of law does not prevent others from choosing any other context for such an inquiry. So, the approach is context-specific but not context-constrained, or bound to a single framing context. Second, by making my inquiry context-specific, I can at least hope the resulting theory to be a theory about something—modern law—rather than an abstract, rarefied theory about anything and everything that has ever been termed law, such that we end up saying close to nothing about any specific instantiation of law. Third, in this age, modern law is a pervasive phenomenon. So, even with this specific focus, we will end up with a theory that actually has a wide scope. Fourth, even if the chosen context is contingent—for it comes in a variety of forms that keep changing over time, with different political communities building on their own sub-traditions of modern law—we can nonetheless attempt to extract some constants out of this contingency. Which is where our inquiry into the distinctive properties of law can begin to turn a description of law into a conceptualisation of law.

What I discovered in the inquiry so conceived is that, instead of attempting to identify some set of necessary and universal traits of law by investigating the structure, function, and content of law, one can gain greater insight into the distinctiveness of law by investigating its mode of existence and operation. I looked at the core instantiations of law and at the way the law views and relates to its addressees as agents fully equipped with the power of reasoning—as purposive, free, and responsible agents. And, by taking this angle to the demarcation problem, I gained two important insights. First, I offered a picture of law as a dual entity that cannot be reduced to a model of plain, top-down, compliance achieved through the use of raw political power by an elite who shapes the law (or what is referred to as law) into a tool it can use to advance its own interests. To be sure, this may well happen in any rule-governed society, but we would not recognise those rules as legal. For, as much as law may connect to power, it purports to ensure that the same political power is legitimate in the eyes of its addressees—the agents to whom the law is ultimately accountable as a system of social governance. This is the dual face of law as system that interfaces between power—including the power to compel behaviour through the force of its binding directives—and the agents who are asked to comply with those directives. Which function the law fulfils discursively, namely, by offering reasons for those directives, precisely because the agents to whom they are addressed are understood as reasoning agents. Hence, the law cannot be equated to a plain-compliance model of social governance. It should instead be conceived as a reasoned-compliance, or guidance, model that works in two directions: From the top down, through the authoritative enactment of directives, and from the bottom up, considering that the law’s addressees are not just recipients of directives but also participants in the process through which these directives are issued and applied.

This brings me to the second insight, where we discover that, in this way of interfacing with its addressees, the law needs to uphold principles of equal participation, impartiality, transparency, and publicity. That is the case because law’s addressees are understood not as means to whatever policy objective is being pursued through the law but as free and equal agents with an ability to engage in discourse. That is, they are recognised to possess an ability (a) to offer reasons for their own conduct or public agenda—their own understanding of what is to be done when matters of common interest are at stake—(b) to frame those reasons in ways that others can be expected to acknowledge, and (c) to acknowledge any contending reasons that others advance in the same way. This mutuality of reason-giving among free and equal agents is mirrored in the reciprocity of the law, which is a reciprocity at once horizontal and vertical. The reciprocity of law runs horizontally in the sense that, just as no single participant in the legal enterprise stands above the rest—all are owed the same respect, as per the principle of impartiality. So no single official, or branch of government, under the law holds absolute power. By contrast, the power is spread out among co-equal power-holders, who need to engage in communicative action toward one another in making, interpreting, and executing the rules that everyone will be subject to. The reciprocity of law also runs vertically in virtue of the relation the law establishes between those formally in charge with making, interpreting, and applying the rules and those to whom the rules are addressed, who are not just rule-followers but rule-shapers too.