The place of legitimacy in legal theory.

• Author: Priel, Dan

In this essay I argue that in order to understand debates in jurisprudence one needs to distinguish clearly between four concepts: validity, content, normativity, and legitimacy. I show that this distinction helps us, first, make sense of fundamental debates in jurisprudence between legal positivists and Dworkin: these should not be understood, as they often are, as debates on the conditions of validity, but rather as debates on the right, way of understanding the relationship between these four concepts. I then use this distinction between the four concepts to criticize legal positivism. The positivist account begins with an attempt to explain the conditions of validity and to leave the question of assessment of valid legal norms to the second stage of inquiry. Though appealing, I argue that the notion of validity cannot be given sense outside a preliminary consideration of legitimacy. Following that, I show some further advantages that come from giving a more primary place to questions of legitimacy in jurisprudence.

Dans cet essai, je soutiens qu'afin de comprendre les debats en theorie du droit, il faut bien distinguer les quatre concepts suivants : la validite, le contenu, la normativite, et la legitimite. Je demontre que cette distinction nous aide d'abord a comprendre les debats fondamentaux en theorie du droit entre les positivistes et Dworkin : nous ne devrions pas comprendre ces debats, comme certains le font, comme des debats sur les conditions de la validite ; ils portent plutot sur la bonne facon d'apprecier la relation entre ces quatre concepts. Ensuite, je me sers de cette distinction entre les quatre concepts pour critiquer le positivisme juridique. Le recit positiviste essaie d'abord d'expliquer les conditions de la validite, pour ensuite repousser la question de l'evaluation des normes juridiques valides a la deuxieme etape de l'analyse. L'idee est interessante, mais j'affirme toutefois que la notion de validite ne peut avoir de sens qu'apres avoir considere la notion de legitimite dans un premier temps. Suivant cette discussion, j'identifie quelques-uns des avantages additionnels lies au fait d'accorder une place plus primaire aux questions de legitimite en theorie du droit.

Introduction I. Four Concepts of Legal Theory II. The Mistaken Positivistic Readings of Dworkin III. Legal Validity and Its Problems IV. The Place of Legitimacy in Legal Theory A. The Positivist Framework B. Recasting the Relationship between Validity, Content, Normativity, and Legitimacy V. The Significance of Legitimacy to Legal Theory A. Making Sense of Dworkin B. The Future of Legal Positivism C. A Lease of Life for Legal Philosophy Introduction

The debates between legal positivists and Ronald Dworkin loom large over contemporary jurisprudence. And yet, these are unusual debates. Dworkin is one of the leading legal philosophers of the last fifty years, who has been engaged in debates extending over decades with other legal philosophers and whose work has been the subject of voluminous commentary. At the same time Dworkin is an outsider of sorts to the field, not hiding his view that he finds much of the work in it uninteresting, even fundamentally misguided. Other legal philosophers in their turn have expressed a similarly ambivalent attitude toward his work, often questioning the importance and quality of his work (1) and even whether he should be considered to belong among their ranks. (2) Yet despite this ambivalent attitude, legal philosophers keep returning to his work. Legal positivists in particular are almost uniform in taking Dworkin's arguments to be both the most significant challenge to their position and at the same time (almost) wholly unsuccessful.

If I venture down these well-trodden paths of the debate between Dworkin and the legal positivists yet again it is in order to explain the source of this odd state of affairs. I will argue that it is grounded in different understandings of legal theory, and in particular of the right way to characterize the relationship between four fundamental concepts: validity, content, normativity, and legitimacy. I will argue that legal positivists have understood the relationship between these concepts in one way and have erroneously assumed that Dworkin holds a similar view of their relationship. Relying on this point I will develop along the way an argument against legal positivism that is different from what is found in Dworkin's work.

Though I will discuss some aspects of Dworkin's work in some detail, I should stress that my concern is not primarily with his work. However, the centrality of the debate between legal positivists and Dworkin and his followers in contemporary jurisprudence makes Dworkin's work difficult to ignore and serves as useful basis for illustrating my own argument. In the end, I do not particularly care whether what I say here is a faithful presentation of Dworkin's views or to what extent it captures what he would consider the core of his ideas. This should be clear from the fact that I ignore here many of the elements that are central to Dworkin's work in jurisprudence (for example, interpretive concepts, integrity, the distinctions between rules, principles and policies, the distinction between fit and justification, the view that political morality is grounded in equal concern and respect, Dworkin's arguments against what he called "Archimedeanism", the semantic sting, the chain novel and so on). Dworkin's views on these matters, With which I do not necessarily agree, are irrelevant for either highlighting what I take to be the fundamental difference between positivist theories and Dworkin's or for bringing out what I take to be the central flaw in positivist theories.

I will start, nonetheless, with Dworkin's critique of legal positivism. Already in 1964 Ronald Dworkin opened one of his earliest published works with the following words: "What, in general, is a good reason for decision by a court of law? This is the question of jurisprudence; it has been asked in an amazing number of forms, of which the classic 'What is Law?' is only the briefest." (3) Some twenty years later Dworkin expressed a similar idea when he said that "[t]he central problem of analytical jurisprudence is ... [w]hat sense should be given to propositions of law?" (4) Shortly afterwards, Dworkin entitled the opening chapter of Law's Empire "What is Law?", a question that matters, he immediately explained, because "[i]t matters how judges decide cases." 5 And recently, some forty years after his early essay, Dworkin made essentially the same point when he said that his main concern is understanding what law is "in what I shall call the doctrinal sense," namely in "what the law requires or prohibits or permits or creates." (6)

It is thus already at the very first lines of the article published in 1964, before Dworkin's first direct attacks on Hart's positivism and long before the supposed radical shift in views that came with his turn to interpretivism, (7) that others concerned with the question "what is law?" should have begun to be puzzled by Dworkin's approach. For on its face it seems odd to say that "what is law?" is only a shorter way of saying "what is a good reason for deciding a case?" or "how should a court decide this particular case?" Not only do these sentences seem to have utterly different meanings, it does not even seem that answering the first question is particularly helpful in answering the second. It is usually thought that an answer to the question "what is law?" should look something this: "law is the set of rules in which a state determines certain permissions, prohibitions and other normative requirements that govern the lives of those under its jurisdiction." This suggestion is no doubt incomplete and vague, but it does not seem that any elaboration or clarification on any of its elements would give us anything that is going to be helpful in answering the question of how cases should be decided. For this we need to know the content of the rules in a given jurisdiction, as well as a theory of adjudication or a theory of interpretation. And though such theories are probably going to be related in some way to a theory of law, they do not look like the same thing at all.

This is indeed how many legal positivists reacted to Dworkin's work, and I believe much of the disagreement with, even incomprehension of, Dworkin's views stems from failure to understand in what sense the question "what is law?" is similar to Dworkin's question "how should judges decide cases?" To see how these two questions are related, why Dworkin is not guilty of such a basic error that it thwarts his theory right from the start, and therefore why many legal positivists' replies to Dworkin miss their target, we must look more closely at the building blocks of jurisprudential inquiry.

1. Four Concepts of Legal Theory

   My contention is that Dworkin's concerns are not very different from those of other legal philosophers, including legal positivists. But I hope to show that while the questions he is interested in are similar, the way Dworkin answers them is radically different; and so the nature of the challenge be puts to legal positivism is not just that he thinks the answer they give to the question "what is law?" is wrong. Rather, legal positivists are wrong in the way they go about answering it.

   To see why positivists are wrong, we need to distinguish between four different concepts: the validity of legal norms, the content of legal norms, the normativity of law, and the legitimacy of law. A legal norm is said to be valid if and only if it is a member of a class of norms that can be identified (in some yet unspecified way) as belonging to a certain legal system. The validity of a legal norm is what explains why it is a legal norm (as opposed to a social or moral norm). The content of a legal norm is what that norm prescribes, proscribes, empowers, and so on...