Lawful, but not Really: The Dual Character of the Concept of Law

Law and Philosophy https://doi.org/10.1007/s10982-024-09501-8  The Author(s) 2024 BRIAN FLANAGAN , GUILHERME DE ALMEIDA LAWFUL, BUT NOT REALLY: THE DUAL CHARACTER OF THE CONCEPT OF LAW (Accepted 17 March 2024) ABSTRACT. Disagreement on law’s relationship to morality has long been driven by disagreement about our ordinary concept. Until recently, however, there had been no systematic investigation of lay intuitions. In this paper, we advance this nascent effort. Across two studies (N = 697), our findings reveal that most people consider law to be more than a matter of political circumstance alone. Contrary to the expectations of most contemporary philosophers, morality (both substantive and procedural) emerges as a key influence on judgments of legal validity: many people say that conduct prohibited by immoral statutes is not truly illegal, and that immoral conduct which was never explicitly prohibited is truly illegal. This suggests that people often treat law as a dual character concept that, like the concepts of scientist or of artist, features autonomous concrete and abstract dimensions. I. INTRODUCTION It has been observed that: ‘[e]very thoughtful person… recognizes that law is [somehow] related to morality’;1 but how, exactly? When discussing historical events now commonly acknowledged to have been immoral, historians readily employ the vocabulary of law and legality, e.g., in references to Hitler’s Nuremberg Laws, to Ireland’s Penal Laws, and to the Jim Crow Laws of the Southern United States. Among philosophers, by contrast, the very possibility of wicked laws remains a live question. Following Plato, ‘natural law’ theorists argue that ‘enactments, so far as they are not for the common interest of the whole community, are no true laws’.2 Conversely, those in the ‘legal positivist’ tradition assert that ‘the existence and content of the law... [is] a matter of social fact whose connection with moral or any 1 2 Thomas Broden Jr, ‘The Straw Man of Legal Positivism’ (1958) 34(4) Notre Dame Lawyer 530, 533. Plato, The Laws of Plato (A.E. Taylor tr, 360 BC, Dent & Sons 1934) Book IV, 715B. BRIAN FLANAGAN, GUILHERME DE ALMEIDA other values is contingent and precarious’.3 As we will see, these philosophical claims have been debated partly on the basis of assumptions about the content of the folk concept of law. Whereas some theorists suppose that wicked statutes are intuitively not laws, others imagine the opposite to be true. Until recently, legal philosophers had not engaged in systematic empirical research into which of these competing assumptions held true. Some researchers have now tried to establish what ordinary people think using vignette-based experiments.4 Importantly, their results suggest that morality does indeed influence ordinary intuitions about legal validity. But it is not the case that these results have simply corroborated one of the currently popular versions of natural law theory. Instead, they raise the possibility that, like certain other ‘dual character’ concepts such as scientist or work of art, we conceptualise law’s existence along two dimensions: a deep sense that is informed by morality, but also a shallow sense that is keyed to descriptive features, i.e., to social facts. In this paper, we use two vignette-based experiments to investigate this possibility. We start out by showing that the folk concept of law has played a significant role in analytic general jurisprudence so far, and that, given certain caveats, it should still do so going forward (Section II). We then explore the many ways in which jurisprudential theories have cashed out the relationship between law and morality and elucidate an ancient alternative’s commitment to law’s dual character (Section III). Building 3 Joseph Raz, Ethics in the Public Domain: Essays in the Morality of Law and Politics (OUP 1994) 210. Raz’s formulation is echoed both in the corresponding SEP entry: ‘‘[T]he existence and content of law depends ultimately on social facts… and not on its merits’’, Leslie Green and Thomas Adams, ‘Legal Positivism’ Stanford Encyclopedia of Philosophy (Winter edn, 2019) <https://plato.stanford.edu/ archives/win2019/entries/legal-positivism/>; and in John Gardner’s well-known elucidation: ‘‘In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits’’, John Gardner, ‘Legal Positivism: 5½ Myths’ (2001) 46(1) American J of Jurisprudence 199, 199. As these quotes suggest, references to law’s ‘validity’ and ‘existence’ are often used interchangeably in describing what is at issue in the theory of law. For an explicit example, see Andrei Marmor and Alexander Sarch, ‘The Nature of Law’ (2019) Stanford Encyclopedia of Philosophy, Edward Zalta (ed.) <https://plato.stanford.edu/archives/fall2019/ entries/lawphil-nature/>, ‘General jurisprudence… assumes that law possesses certain features… wherever it happens to exist... First, we need to understand the general conditions that would render any putative norm legally valid.’ We follow this practice here. 4 Raff Donelson and Ivar R Hannikainen, ‘Fuller and the Folk: The Inner Morality of Law Revisited’ in Tania Lombrozo, Joshua Knobe and Shaun Nichols (eds), Oxford Studies in Experimental Philosophy: Volume 3 (Oxford UP 2020); Ivar R Hannikainen and others, ‘Are There Cross-Cultural Legal Principles? Modal Reasoning Uncovers Procedural Constraints on Law’ (2021) 45(8) Cognitive Science; Brian Flanagan and Ivar R Hannikainen, ‘The Folk Concept of Law: Law Is Intrinsically Moral’ (2022) 100(1) The Australasian J of Philosophy 165. LAWFUL, BUT NOT REALLY on this theoretical foundation, we report two empirical studies (Sections IV and V) that seek to adjudicate between these jurisprudential stances. Together, these studies suggest that, intuitively, there is a dimension of legal validity for which morality – both substantive and procedural – might not only be necessary, but also sufficient. Section VI summarises the results and discusses some of their philosophical implications. II. THE ROLE OF INTUITIONS At the turn of the century, a new research direction in philosophy began to emerge that tapped the methods of experimental psychology to scrutinise the folk conceptual intuitions to which traditional analytic theorists have often found it apt to appeal.5 On the basis that ‘it matters whether the philosopher’s intuition is as widely shared as the philosopher believes it to be’,6 this novel paradigm, ‘experimental philosophy’, soon began to expand its reach into different philosophical domains.7 The potential for this paradigm to contribute to the theory of the nature of law is evident. Direct appeals to lay intuitions in jurisprudence are legion.8 When describing their evaluation of alternative positions, theorists regularly note that ‘[t]he fact that an account [of the nature of law] does not square with some of our intuitio (...truncated)