Brian Bix - Raz on Necessity

7/22/2019 Brian Bix - Raz on Necessity

1/24Electronic copy available at: http://ssrn.com/abstract=464420Electronic copy available at: http://ssrn.com/abstract=464420

BRIAN H. BIX

RAZ ON NECESSITY

(Accepted 19 April 2003)

INTRODUCTION

Joseph Raz is the foremost theorist in contemporary English-

language analytical jurisprudence.1 His work has contributed

significant and provocative new ideas in many areas of legal philos-

ophy, including that most ancient, and most obscure, inquiry what

is (the nature of) law? Razs discussions of the nature of law

have included claims regarding what is necessary or essential

for law,2 as well as offering other conclusions that are grounded on

assertions regarding this nature. These sort of comments regarding

necessity raise basic questions regarding the type of claims that

are being offered, and that can be offered, within legal philosophy.

The other issue raised, indirectly, is what is at stake in the question

of whether we should or should not speak in terms of necessity in

jurisprudence.

In this paper, I will investigate discussions of necessity in juris-prudence, with particular emphasis on theories of the nature of law,

and on the work of Joseph Raz. In recent years, Raz has been one of

the few theorists to explore the important meta-theoretical questions

in jurisprudence. This essay will give a critical overview of these

works, offering a guide to how the debate has developed and what

its significance is. One conclusion that will be reached is that the

1 His books have all been important contributions to the current debates in

legal, moral, and political philosophy: (Raz 1979, 1980, 1986, 1990, 1994, 1999,

2001, 2003).2 I follow Raz, the philosopher Frank Jackson, and most writers in using

necessary/necessity and essence/essential as roughly interchangeable when

discussing conceptual analysis in particular, the connections that exist or are

claimed to exist between a concept and constituent properties.

Law and Philosophy 22: 537559, 2003.

2003Kluwer Academic Publishers. Printed in the Netherlands.



538 BRIAN H. BIX

possibility of necessity talk in jurisprudence goes hand-in-hand

with the possibility of conceptual analysis; if one concludes that one

is impossible or inappropriate in discussing law, then likely the other

is as well. As will be discussed, a defense of conceptual analysisin jurisprudence must likely follow Razs lead, offering a notion

of necessity that is distinctly not Platonist, but is rather deeply

grounded in a communitys way of life or its self-understanding.

In this sense, one can have the paradoxically sounding necessary

truths that change over time. At the same time, there is still much

work to be done in articulating and justifying a conclusion that there

is (or we have) only one concept of law.

The investigation will proceed in stages, beginning with a

more general consideration of necessity claims in philosophy,

and then facing the specific question of whether such claims can

and should be made within theories about the nature of law.Part I discusses necessity claims in philosophy. Part II introduces

conceptual analysis, offers an overview of its use in jurisprudence,

and considers one recent critique of that approach. Part III considers

a different line of criticism of conceptual analysis in jurisprudence

that there is no single concept of law and also evaluates how a

similar critique might apply to Razs view.

I. THE PROBLEM OF NECESSITY

What is Necessity?

In his essay, Authority, Law, and Morality, Raz writes: I will

assume that necessarily law, every legal system which is in force

anywhere, has de facto authority. That entails that the law either

claims that it possesses legitimate authority or is held to possess

it, or both.3 This is a central point in Razs argument, though it

appears with little prior argument or stage-setting. Raz goes on to

assert: If the claim to authority is part of the nature of law, then

whatever else the law is it must be capable of possessing authority.4

3 Raz (1994, p. 199).4 See Raz (1994, p. 199). The claim is repeated, often more emphatically, in

Razs later writings, see, e.g., Raz (1988, p. 3; 1996, p. 6), and a form of the claim

can be found in an earlier work (Raz 1979, pp. 2833).



RAZ ON NECESSITY 539

From a view about what it takes to be potentially authoritative, Raz

elaborates an argument for what has become known as exclusive

legal positivism: that by the nature of law, legal rules must be

identifiable without resort to moral judgments.5

My interest in this essay is not in evaluating the merits of Razs

argument-from-authority for exclusive legal positivism, a task many

others have already undertaken.6 My concern is rather with the

character or status of Razs initial claim. He is making a claim

about, as he puts it, the nature of law, or the necessary elements

of everything which falls under the category law. Lest this use

of necessity be thought to be aberrational within Razs work, it

should be observed that the same sort of analysis appears, with

greater elaboration, in a number of his later works.7 It should also be

noted that Raz is by no means the first legal theorist to make claims

of this sort. John Austin distinguished between laws properly socalled and laws improperly so called based on whether an object

had all the qualities composing the essence of the class;8 and

wrote of endeavour[ing] to resolve a law. . .into the necessary and

essential parts of which it is composed.9

Still, reference to essence and necessity must strike a slightly

discordant note to modern ears. This may be exemplified by Ronald

Dworkins reference, in a somewhat different context, to the pecu-

5

See Raz (1994, pp. 199204); see also Waluchow (1994, pp. 123140)(discussing Razs argument from authority for exclusive legal positivism).6 See, e.g., Waluchow (1994); Coleman (1998b, pp. 267278); Leiter (1998,

pp. 540544).7 See, e.g., Raz (1996, p. 2) (The universality of the theses of the general

theory of law is a result of the fact that they claim to be necessary truths, and

there is nothing less that they can claim); Raz (1998, p. 255) (What then counts

as an explanation of a concept? It consists of setting out some of its necessary

features, and some of the essential features of whatever it is a concept of. In our

case, it sets out some of the necessary or essential features of the law).

Dickson (2001, p. 17 n. 24) notes the issue of Razs use of necessity, but does

not analyze the matter further.8 Austin (1995, Lecture V, pp. 108109) (Austins Province, considered

by many to be the seminal work for legal positivism, was first published in1832).

9 Austin (1995, p. 117).


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540 BRIAN H. BIX

liar world of legal essentialism.10 What is such metaphysical

language doing in a discussion of a social institution?11

Necessity Claims Generally

Is there a place for necessity within discussions of law? Some

philosophers have argued for necessity in the definition of certain

terms, when those terms denote some category whose boundaries

are arguably set out by the way the world is. These are natural

kind terms, like water and gold, and the debate within the liter-

ature, at least initially, was addressed to the question of whether

terms of this kind have their reference determined by peoples

beliefs about the items nature or by the way the world is.12

Whatever the merit of a natural kinds analysis for terms that refer

to natural or physical entities, its applicability to human institutionsand social practices would seem to be much more problematic.

Gold may be a category whose boundaries are set by the world, and

its essence estimated by the best scientific theory we currently have;

there is, however, little reason to think that a similar approach would

work for baseball or for law. In what way could the world be

said to delimit what does and does not count as law?, and what

would it mean to have a scientific theory of the nature of law?13

10 Dworkin (1984, p. 259); but see Kramer (1999, p. 179) (Either [Dworkins]

allegations about essentialism are false, or they apply as much to him as to any

positivists).11 On the other hand, some legal theorists think that it is a way of thinking that

jurisprudence cannot do without:

Even though it is no longer fashionable to talk of essences, something

like the idea of the essence of a concept must be kept in mind in these

debates [between legal positivism and natural law theory], or we will no

longer be able to distinguish the peculiar science of jurisprudence from any

old discussion of a legal topic (Soper 1995, pp. 365366).

12 See generally Putnam (1975). For a critical analysis of attempts to apply

natural kinds theories to law, see Bix (1993, pp. 157173).13 Michael Moore (1998, p. 312) suggests that H.L.A. Harts legal theory could

be seen as implying something analogous just as there are natural kinds inthe natural world, so there are social kinds in the social world, and law is one of

them but this still leaves us with the question of what it would mean for there

to be social kinds.


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Another analogy within the philosophical literature might be

Saul Kripkes idea of rigid designators: that in counterfactuals,

singular terms are intended to have the same reference in all possible

worlds.14

Again, while the analysis is arguably persuasive as regardsproper names, it would be awkward, at best, if applied to a social

practice or social institution like law.15

In the context of theories about the nature of law, and the use

of necessity within such discussions, the Kripke-Putnam theories

about reference and semantics do not seem helpful, except perhaps

by broad analogy.16 There remains one path in philosophical

analysis to consider.

II. CONCEPTUAL ANALYSIS AND JURISPRUDENCE

Conceptual Analysis in General

One likely response to the discussion up to this point would be: Of

course, a jurisprudential discussion about the nature of law is not

an analysis of logical necessity, or even of a natural kind. It is a

conceptual analysis, and whatever necessary or essential claims

are involved are those of the inquiry into concepts.17

14 See Kripke (1972).15 One can accept Kripke and Putnams positions on a more general level, that

meaning has asocialdimension, and is not individualistic (in the mind), even ifone does not accept that the world determines the meaning of our concepts. Raz

(1998, pp. 262264 & n. 26). The significance of this compromise position for

the present analysis will become clearer later in the paper.

One should also note Nicos Stavropouloss recent efforts to ground objectivity

in legal interpretation in an analysis that draws upon, and is comparable to,

Kripke-Putnam semantics. Stavropoulos (1996).16 See n. 15 above.17 Of course, when the classical philosophers wrote of essential and accidental

properties, they were usually referring to the essential and accidental properties

of things, not of concepts. See, e.g., Aristotle, Metaphysics, Book VII, ch. 4

(Aristotle 1984, pp. 16251627).

Whether conceptual analysis must be in terms of necessary or essential

terms whether all concepts have that structure, or can be analyzed in that way,or whether some can only be analyzed in terms, say, of paradigm cases B is a

question that goes beyond the terms of this paper. It is sufficient for our purposes

thatsomeconcepts can be analyzed this way. Whether law is best analyzed this


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542 BRIAN H. BIX

Philosophical analysis of concepts is, of course, nothing new. For

example, there was a long-standing debate about whether knowl-

edge should be defined as justified true belief.18 We do believe

that we can sensibly analyze our concepts, and, at least sometimes,determine what their essential (and accidental) attributes are.19

Also, conceptual analysis is certainly nothing new for jurisprudence

either: arguably the most important jurisprudential text published in

English in the last century was described by its title as being about

a concept, H. L. A. HartsThe Concept of Law.20

However, one might ask, why should we study the concept if

we can study the thing itself (the practice, the type of institu-

tion) instead?21 This may seem like an empiricists (or an anti-

intellectuals) response to impractical, overly abstract philosophers.

At that level, the proper response is that conceptual analysis is a

prior inquiry we cannot study law until we knowwhat we mean bylaw.22 Some might persist that the proper study of law a social

institution is through social theory. Law is a set of social prac-

tices, the argument would go, so its nature is best discovered, not by

armchair reflections, but by an investigation of the actual practices

(a view that will be considered at greater length below). However,

should someone suggest that the investigation of the nature of law

way can be considered without resolving the question of whether all concepts

must be analyzed this way.18 Gettier (1963).19

Cf. Raz (1998, p. 273 n. 38), where Raz distinguishes those features of lawwhich are general, i.e., shared by all legal systems and the essential features of

law, features without which it would not be law.20 Hart (1994); see also Raz (1980) (The Concept of a Legal System).21 Michael Moore seemed to express just that view when he wrote: General

jurisprudence should eschew . . .conceptual analysis in favour of studying the

phenomenon itself, law. Moore (1992, p. 206). However, given the source, a

moral and legal philosopher whose work is grounded on a metaphysically realist

approach, this was not the likely intention of the quotations challenge. The place

played by conceptual analysis in most schemas is played in Moores anlaysis

by Platonic essences, natural kinds, or functional kinds. Whether a metaphysical

realist like Moore can make do without conceptual analysis is a discussion for

another time. See also Moore (1998, p. 313) (reiterating the difference between

studying a phenomenon through concepts and studying it directly, but concluding,at least as regards law, that the difference here is not great).

22 See, e.g., Jackson (2000, pp. 3031); cf. Coleman (2002, pp. 347351)

(offering a similar response to a naturalist critique of conceptual analysis).


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bepurelyempirical/sociological, that claim would be vulnerable to

the argument just offered: how can one have a sociological theory

of law if one does not have at least a rough prior notion of what is

or is not law?23

There is thus a sense in which conceptual work must be prior

to empirical work.24 For the focus is inevitably on the boundaries

of the category here, what makes something law or not law?

We are not asking empirical questions about particular institu-

tions: e.g., about the historical origins of common law reasoning in

the English legal system, or the interpretive practices of American

judges when construing statutes. Questions about specific institu-

tional practices would be social theory inquiries, which would call

for some combination of model building, observation, and statistical

analysis. However, the more general discussion of the nature of law,

if such discussion has any place at all, is not a comparably empiricalinquiry.25

One might point out that if it would be mistaken to try to

ground a theory of the nature of law solely on empirical or soci-

ological grounds, without reference to conceptual analysis, it would

be equally mistaken to ground such a theory solely on conceptual

analysis, without reference to empirical and sociological truths.26

Indeed, what sense or value could there be to a purported concept

of law if that concept had no relation whatsoever to the practices

we associate with legal systems? Razs own view is that the concept

23 One possible response is that while a prior notion of law is needed before

beginning other (empirical) work, simple intuitions and linguistic usage patterns

would be sufficient for that purpose. No thickerconceptual analysis is needed (or,

some commentators might add, possible). Leiter (2002).24 However, there is also a sense in which the theorist doing conceptual analysis

must defer to the way the world is, at least in those cases where the theorist

is investigating the nature of an already-existing concept. The matter would be

different if we were positing some new concept or category, and then consid-

ering what empirical claims could be made about that concept. See Raz (1994,

p. 221).25 None of this is to claim that sociological inquiry must be subordinate to

conceptual analysis. The fact that we have a rough sense of (e.g.) what is and

what is not law does not mean that social theories must be built on categoriesthat track those concepts.

26 This view has been forcefully advocated by Brian Tamanaha. See, e.g.,

Tamanaha (1997, 2000, 2001, pp. 132).


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544 BRIAN H. BIX

of law is grounded on the perceptions and self-understandings of

people27 self-understandings which, in turn, one presumes, reflect

the social practices that help to constitute the social institution. The

connection between conceptual analysis and empirical truths will bediscussed further, below.

Skepticism About Conceptual Analysis: Naturalism and Family

Resemblance

Naturalism

As one final stop in this brief overview of conceptual analysis, it

should be taken into account that some theorists challenge the whole

notion of concepts and conceptual analysis. A challenge of this sort

is offered (though only partly endorsed) by Brian Leiter:

What is a concept? A cynic might say that a concept is just what philosophers

used to call meaning back when their job was the analysis of meaning. But ever

since Quine embarrassed philosophers into admitting that they didnt know what

meanings were, they started analyzing concepts instead.28

In a way, this challenge to conceptual analysis is related to a nomin-

alist critique, which will be considered in greater length in Part III.

In addition to the responses to the nominalist critique that will be

considered at that point, one might add (as Leiter himself does), the

concept of law has an advantage over the concept of the good, in

that there is an identifiable set of practices and institutions to ground

our discussions.29 The concept of law cannot easily be accused ofbeing an entirely mysterious entity, made up by metaphysicians in

their spare time.30

Further, as Jules Coleman has argued, the search for analytic

truths that W. V. O. Quine criticized is quite different from what

27 See, e.g., Raz (1996, pp. 56).28 Leiter (1998, p. 535). Leiter continues: The cynical view has, I believe, a

modicum of truth, but it is hardly the whole story.Id. Cf. Jackson (2000, p. vii)

(Properly understood, conceptual analysis is not a mysterious activity discred-

ited by Quine that seeks after the a priori in some hard-to-understand sense.

It is, rather, something familiar to everyone, philosophers and non-philosophers

alike); see alsoid., pp. 4446, 5255 (responding to Quine).29 Leiter (1998, p. 536).30 Compare J. L. Mackies famous accusation that moral objectivism depends

on the belief in queer entities. Mackie (1977).


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modern legal theorists were (and are) doing in their conceptual

theories.31 Neither H. L. A. Hart nor Joseph Raz or Jules Coleman,

nor any other prominent legal theorist, could reasonably be under-

stood as trying to determine the analytical essence of sometrans-historical trans-empirical (Platonic) Idea.32

Family Resemblance

Ludwig Wittgenstein famously introduced the notion of family

resemblance as a shorthand for the way that some concepts and

categories (Wittgenstein used the examples language, game, and

number) cannot be understood in terms of necessary and sufficient

conditions, but rather have a variety of different and overlapping

criteria.33 Wittgenstein was not claiming that all concepts were

family resemblance concepts, only that some were, and therefore it

would be a mistake to assume that there would always be necessaryand sufficient conditions for every concept.34

A number of writers have suggested that law mightbe such a

family resemblance concept, with instantiations having no feature

in common and thus no necessary features.35 Hart himself

suggested that the notion of family resemblance might be partic-

ularly relevant to legal terms,36 and he broadly hinted early in The

Concept of Law that law might well best be understood in this

way,37 though later in the same book he offered what appeared to be

a set of necessary and sufficient conditions for that term.38

That noted, because no one claims that all concepts are family-

resemblance concepts, even if one accepts that some are, analysis

and debate must be developed concept by concept. One way to

disprove that law is a family resemblance concept is to provide

an analysis in terms of necessary and sufficient conditions, as Raz

31 Coleman (2002, pp. 343351).32 Coleman (2002, pp. 350351).33 Wittgenstein (1958, 6568). For a critical discussion, with further

citations, see Glock (1996, pp. 120124).34 See Glock (1996, pp. 123124).

35 See, e.g., Burton (1985, pp. 19791980); Lyons (1983, p. 259).36 Hart (1994, pp. 279280).37 Hart (1994, pp. 1516).38 Hart (1994, p. 81).


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546 BRIAN H. BIX

and others have attempted to do. If the analysis succeeds, that

suffices to show that law is nota family resemblance concept.39

The Connection with Practice and the Number of Concepts

In discussing the challenge of naturalism, I noted that theories about

the concept of law might be less vulnerable than other concep-

tual analyses to naturalist attacks, because the concept of law

is grounded in actual practices. However, to say that conceptual

analysisisconnected with lived experience in some ways leads reas-

onably to the question a surprisingly difficult one of what that

connection is.40 Raz suggests the following:

The concept of law is a historical product, changing over the years, and the

concept as we have it is more recent than the institution it is used to single out.

. . .

But the concept of law is not a product of the theory of law. It is a concept

that evolved historically, under the influences of legal practice, and other cultural

influences, including the influence of the legal theory of the day.41

In other words, todays concept of law is different from the concept

of law of some generations or centuries in the past. This in turn

raises the question of the quantity of concepts of law (more than one

over time?, more than one at any given time?), and their parochial

or universal nature.

When we are analyzing the concept law, the modifier we place

in the description can be crucial. Are we describing, as in the titleto H. L. A. Harts book, TheConcept of Law, implying that there

is (and has always been) only one? Or are we merely offering a

concept of law, implying that this is merely one possible concept

among many.42 Also, even if it is only one possible concept among

many (and thus, in a sense, contingent, not necessary), is the

focus on this concept non-arbitrary that is, is there some good

39 Although, of course, the opposite is not the case: the failure of a particular

necessary-and-sufficient-conditions analysis does not prove that lawis a family

resemblance concept, though it may help to fuel doubt in that direction.40 I discuss the issue in Bix (2000).

41 Raz (1998, pp. 280, 281).42 Someone once suggested that the two books, The Concept of Law (Hart

1994) and A Theory of Justice (Rawls 1999), might have usefully exchanged

articles.


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reason why we should look to this concept rather than another?

For example, might one argue that we are focusing on a partic-

ular concept among different possible concepts because it is our

concept of law though contingent, in the sense that there areotherconcepts of law, this is the one that matches our communitys

linguistic practices or general self-understanding?

Jules Coleman, in a recent article, has advocated thinking in

terms of our concept of law, tying that position to a somewhat

deflationary notion of necessity:

The descriptive project of jurisprudence is to identify the essential or necessary

features ofourconcept of law. No serious analytical philosopher . . .believes that

the prevailing concept of law is in any sense necessary: that no other concept

is logically or otherwise possible. Nor do we believe that our concept of law

can never be subject to revision. Quite the contrary. Technology may someday

require us to revise our concept in any number of ways. Still, there is a differencebetween the claim that a particular concept is necessary and the claim that there

are necessary features of an admittedly contingent concept.43

In what may well be more of a difference of label than of substance,

Raz writes of a concept of law that seems to be both contingent and

necessary (or, in his somewhat different terminology, both paro-

chial and universal44). According to Raz: (1) wehave a concept

of law; (2) based on our societys self-understanding; and (3) our

concept of law has changed over time, in response to changes in

institutions, practices, attitudes, and even philosophical theories.45

Let us look more closely at these notions within Razs analysis.Raz is not a Platonist, and therefore does not believe that the concept

of law is some eternal Platonist Idea, which would be the same for

43 Coleman (1998a, p. 393 n. 59). While I am not entirely sure what Coleman

means by technology requiring the revision of a/our concept, the notion of a

contingentconcept, on its own, seems understandable.

In an earlier work, I responded to Colemans quotation in the text by asking

about what work was being done by necessary or essential in the phrase the

essential or necessary features of our concept of law. Bix (1999, p. 28 n. 59).

While noting how similar Colemans position seems to be to that of Razs, I

retract the earlier criticisms. I would only add that it is still important to be able

to distinguish the features of legal systems, even the features ofalllegal systems,

from the necessary or essential features that make those systems legal. SeeRaz (1998, p. 273 n. 38).

44 See, e.g., Raz (1996, pp. 17).45 See Raz (1996, 1998, 2004).


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548 BRIAN H. BIX

all people or for all times.46 Therefore, it is natural to suspect that the

concept we investigate is our concept, the product of a specific

culture our own.47 And since what counts as law (under our

concept) is independent of a societys possessing that concept, therewere likely earlier cultures or alien cultures that did not or do not

share or have our concept, yet still had law.48

While the concept of law has changed over time not some

unchanging Idea we are discovering Raz treats the/our concept

of law as something unique, a matter about which we can be right or

wrong in our descriptions, and which we cannot simply re-invent for

our own purposes (though he does note that since concepts of law

are in flux, our theories of law, even mistaken theories, could influ-

ence the concept of law future generations have49). Similarly, Raz

rejects the notion that we (as theorists) can choose a concept of law

based, say, on its fruitfulness in further research,50 or even according

46 Contrast Ciceros comments on natural law:

True law is right reason in agreement with nature; it is of universal applica-

tion, unchanging and everlasting;. . .And there will not be different laws at

Rome and at Athens, or different laws now and in the future, but one eternal

and unchangeable law will be valid for all nations and all times . . ..

Marcus Tullius Cicero, The Republic, Book III, xxii (Cicero 1928, p. 211). I do

not mean to imply that Ciceros view of an ideal law, or an eternal standard for

morally judging all positive laws, is the same as modern conceptual analyses of

law. I use Ciceros language only to exemplify a view of something unchanging

over time and independent of experience.47 Raz (1996, p. 5).48 Raz (1996, pp. 4, 5, 6).49 Raz (1996, p. 7).50 See, e.g., Raz (1994, p. 221):

[I]t would be wrong to conclude . . .that one judges the success of an analysis

of the concept of law by its theoretical sociological fruitfulness. To do so is

to miss the point that, unlike concepts like mass or electron, the law is

a concept used by people to understand themselves. We are not free to pick

on any fruitful concepts. It is a major task of legal theory to advance our

understanding of society by helping us understand how people understand

themselves.Among those who appear to take a contrary view regarding choosing concepts

according to usefulness, see, e.g., Leiter (1998); Lyons (1983, pp. 5759); Tama-

naha (2000, pp. 283288). (In an earlier work (Bix 1999, pp. 928), I also seemed


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to its simplicity or elegance;51 rather, it is a concept already present,

already part of our self-understanding. Raz refers repeatedly to the

concept of law which exists independently of the legal philos-

ophy which attempts to explain it,52

and the nature of law whichgeneral theories of law must strive to elucidate.53

When these aspects of Razs view of the concept of law are

combined, they result in a position which might seem problem-

atic in two different ways. First, under Razs analysis, the concept

may apply to societies who do not or did not have the concept.54

Raz emphasizes that nothing radical is implied or assumed by this

position: only that some ways of articulating our understanding of

ourselves develop slowly, as do concepts for understanding alien

cultures (such understanding requiring the development of concepts

which allow us to relate those cultures understanding of their prac-

tices to our understanding of our own practices).55 As Raz pointsout, we seem untroubled by this sort of analysis elsewhere: for

example, we can talk about the standard of living of a society

which existed long before that concept had been articulated.56

The second problem is one that some readers might find harder to

shake off: the way Raz combines references to necessity with talk

of historical contingency. This can be confusing, given the connec-

tions, mentioned earlier, within normal philosophical discourse

between necessity and the way things must be or the way

things must be in all possible worlds. The necessity in conceptual

analysis at least in Razs conceptual analysis is of a softerkind, as it were. It means only that these are connections internal

to the concept in question (e.g., to be a legal system is to claim

authoritative status), a concept which is itself contingent and may

be tied to a particular community and time-period.

to endorse a contrary view, but I was, and am, more agnostic on this subject than

that text might imply.)51 See Raz (2004).52 Raz (1998, pp. 280281 (emphasis added)).53 Raz, (1998, p. 2 (emphasis added)); see also Raz (2004).54 See, e.g., Raz (1998, p. 4) (the concept of law is itself a product of a specific

culture, a concept which was not available to members of earlier cultures whichin fact lived under a legal system).

55 Raz (1998, pp. 45).56 Raz (2004).


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550 BRIAN H. BIX

III. CRITICAL RESPONSES

Beyond the skepticism about conceptual analysis discussed earlier,

there are a variety of possible critical responses to the Razian claimthat we can and should speak of necessary truths regarding our

concept of law. This Part will offer an overview of some of the

criticisms which have been brought, or could have been brought,

as well as the responses that might be made to those criticisms.

Nominalism and Pluralism57

First, there is the view, hinted at earlier, that there is no single

concept of law, or at least none that should be given priority over

all the others. This view is well-presented by Brian Tamanahas

comment:The project to devise a scientific concept of law was based upon the misguided

belief that law comprises a fundamental category. To the contrary, law is thor-

oughly a cultural construct, lacking any universal nature. Law is whatever we

attach the labellawto.58

This can be seen to be a nominalist attack on conceptual theory:

there is no category (natural or otherwise) law, law is whatever

we want it to be, so it is a strange exercise at best to wonder about

the nature or essential nature of something we have constructed

(and could construct a different way if we so choose). Perhaps juris-

prudence can only be, in a phrase used by one commentator, aconjunction of lexicography with local history, or. . .a juxtaposition

of all lexicographies conjoined with all local histories.59

One response60 to this sort of nominalism61 (though one more

modest or minimalist than Raz would likely offer) is that one need

not posit any sort of metaphysical grouping to justify theorizing

57 I do not mean to invoke the sociological/anthropological notion of legal

pluralism, with which the following discussion has at most a tangential

connection. On the social science notion, see, e.g., Tamanaha (1993).58 Tamanaha (1997, p. 128 (footnote omitted)).59 Finnis (1980, p. 4). Finniss position, of course, is that Jurisprudence ismore

than just such a conjunction. See id. at pp. 318.60 It is a response elaborated in Bix (2000, pp. 230234).61 One writer has defined nominalism as The view that things denominated

by the same term share nothing except that fact. Blackburn (1994, p. 264).


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about concepts. However arbitrary the inclusion or exclusion of

items in our category law, if there is something interesting that

can be said about all (and perhaps only) the items in that category,

the process of theorizing will have value.62

(One could also come atthe question from the other direction, as Frederick Schauer did, and

offer the suggestion that maybe there is a single concept, law, but

nothing interesting can be said about it.63)

One can invert the prior point: not that there should be more-or-

less arbitrary categories, about which there may or may not be some-

thing interesting to say, but rather that we should build or select

the categories which will have the best practical consequences.64

Frederick Schauer, controversially, associates that position with

both H. L. A. Hart and Lon Fuller: Both Fuller and Hart appear

equally committed to the belief that giving an account of the nature

of law is not so much a matter of discovery as one of normatively-guided construction, with the best account of the nature of law being

the one most likely to serve deeper normative goals.65

62 See, e.g., Bix (2000, p. 231).

One should also distinguish a general skepticism about concepts and conceptual

analysis from the criticisms American and Scandinavian legal realists brought

against judges and legal commentators who had reified legal concepts into objects

whose nature they studied, and used to justify particular legal conclusions. See,

e.g., Cohen (1935); Ross (1959, pp. 178183).63 Schauer writes:

[N]ot every class that exists in the world is philosophically interesting

as a class. The classes residents of London, foods that begin with the

letter Q, and professional basketball players are all real even though

they are not natural classes, not ontologically primary, and not of great

philosophical interest. Similarly, law may exist as an analogously non-

ontologically primary aggregation of individuals, institutions, and practices,

undeniably part of the world but simply not having the philosophically inter-

esting core that philosophers of law have often supposed (Schauer 1994,

p. 508).

64 This is not to be confused with categories that have the best theoretical

consequences (consequences for research), a view associated below with Brian

Leiter.65 Schauer (1994, p. 290 (footnote omitted)); cf. Hart (1994, pp. 207212)

(suggesting that between two rival concepts of law, one should choose the wider

one because it would help us in our confrontations with evil laws).


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552 BRIAN H. BIX

Tamanaha has, in a recent article,66 clarified his original posi-

tion, discussed in the prior sub-section, and the clarification offers

a distinctly different possible critique. He argues that his earlier

comments should not be read as an attack on conceptual theoryas such, but rather as an attack on a particular kind of conceptual

theory. Instead of starting from the position that there is a single

concept of law or a core concept of law (e.g., state law), to

which other kinds of law (e.g., international law, customary law) are

peripheral, derivative, or defective instantiations, Tamanaha argues

for there being a multitude of specific manifestations of law, each

of which has its own characteristic features and none of which

would have any priority over the rest.67 Tamanaha argues that there

is no good reason for giving state law priority over, say, interna-

tional law in ones theorizing about law.68 Alternatively, it could

be pointed out that theorizing with state law at the core has likelyalready achieved all the important insights which it can, and that

a different approach, centering on a different form of law (or a

different view of law) would likely produce new insights.69

Whatever the merits of Tamanahas claim, one might argue that

it does not go to the core of Razs views. If there is one concept of

(state) law, the fact that there is also another or broader concept

that includes or overlaps that of (state) law is not something the

Razian legal theorist need deny.

Doubts About the Generality of General Jurisprudence

A different criticism is offered, albeit more implicitly than expressly,

in Ronald Dworkins work. Dworkin offers an interpretive approach

to law and legal theory, within which he asserts that the inter-

esting work will be at the level of interpretations of particular

legal systems, rather than at the level of general theories of law.70

66 Tamanaha (2000).67 Tamanaha (2000, p. 284).68 Tamanaha (2000, p. 284).69 Tamanaha (2000, pp. 284285). Tamanaha adds that a theory of law in which

state law is predominant does not fit as well to current practices, in which citizensare often subject to multiple forms of law (from their home countries to the

European Union to various international tribunals). Id.70 See, e.g., Dworkin (1986, pp. 102103; 1987, p. 16).


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Dworkins position is not so much that theories generally about law

are impossible or incoherent, but rather that they are not productive:

that there is nothing terribly interesting that one can say about all

legal systems, but that there are many things of value one can sayabout particular legal systems.71 (It may also be significant that

Dworkin sees more general statements about law being tied toquite

specific claims madewithin daily legal practice. He famously states

that no firm line divides jurisprudence from adjudication or any

other aspect of legal practice.72)

One might respond to Dworkin the same way he has responded to

challenges to his right-answer theory based on global indeterminacy

or global incommensurability (incomparability). His response has

been that arguments cannot, or cannot easily, be made on a global

level, but must be made piecemeal. Dworkins argument is that for

a particular case, one puts up an argument for there being a (certain)right answer, and it is up to the critic to show that for this question

there is no right answer, or that the values factored into a possible

answer are incommensurable.73 The same sort of response could be

offered to Dworkins view on the proper scope of legal theory: once

a theory purports to say something interesting about (the concept

of) law generally, it will then be proper for critics to show that this

theory is faulty in some way.74

Dworkins own work is, at best, doubtful support for this critique.

While it is true that he writes of the interpretation of particular

legal systems, and doctrinal areas within particular legal systems, hesimultaneously makes claims that apply to all legal systems:75 most

importantly, that all legal systems indeed, all social institutions

are (should be) understood through constructive interpretation.76

Also, while he offers one theory in discussions of the legal system

71 See Dworkin (1986, pp. 102103; 1987, p. 16).72 Dworkin (1987, p. 14).73 See, e.g., Dworkin (1986, pp. 266275; 1991, pp. 8990).74 Cf. Raz (1998, p. 282).75 Cf. (Raz 1998, p. 282): the book [Laws Empire] belies the modesty of

passages like the above [Laws Empire, at pp. 102103]. Time and again, from

its beginning to its very last section, it declares itself to be offering an account oflaw, unqualified, in all its imperial domains.

76 See Dworkin (1986, pp. 4953). Dworkin defines constructive interpreta-

tion as a matter of imposing purpose on an object or practice in order to make


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554 BRIAN H. BIX

of the United States,77 he never indicates that a distinctly different

theory would be appropriate for some other, distinctly different legal

system (e.g., that of England, France, Iran, or Tibet).

Choices Still to Be Made (Normative Jurisprudence)

When Raz (and Coleman and others) try to defend a conceptual

jurisprudence unconnected with classical Platonism, this approach

has the advantage of not being burdened with a metaphysics many

people find unlikely (at least where applied to social practices and

institutions). On the other hand, Platonism has the relative advantage

of explaining why it is that there is a single (correct) answer to

conceptual inquiries about law. When we move from the concept

of law to our concept of law, there is more work to be done in

justifying the assumption or conclusion that there is only one suchconcept.

Much of Stephen Perrys work is grounded on a claim similar to

the critique that could be raised against Raz: that there is more than

one tenable theory about the nature of law (grounded on different

tenable theories about the purpose of law), and the choice among

them must be made on moral or political grounds.78 Brian Leiter

has offered a similar argument, grounded in part on Perrys work:

that there are a number of different concepts of law, more than one

of which could equally legitimately be claimed to be ourconcept;

given that fact, on what grounds can Raz (or anyone else) arguethat the concept he has picked out is the right one? 79 Leiter goes on

to advocate choosing the concept of law that figures in the most

fruitfula posterioriresearch programs (i.e., the ones that give us the

best going account of how the world works).80

of it the best possible example of the form or genre to which it is taken to belong.

Id.at p. 52.77 On some occasions, he makes passing references to the law of England (and

Wales), but he has not offered a distinct theory of English law.78 See, e.g., Perry (1995, 1996).79 Leiter (1998, pp. 545547). For arguments similar to those of Perry and

Leiter, grounded on somewhat different analyses, see Lucy (1999, pp. 7079);Murphy (2001).

80 Leiter (1998, p. 547). Contrast Razs rejection of a functionally-driven

approach to theory construction,supranote 50.


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There is substantial argument in the literature about whether there

are in fact choices that need to be made among tenable theories

of law (or among the tenable purposes of law that ground these

alternative theories), and about whether such choices are necessarilynormative, or can be justified on conceptual or morally neutral meta-

theoretical grounds.81 Razs references to the concept of law, and

even to the way concepts emerge within a culture at a particular

juncture,82 seem to assume that there is only one concept of law

(or, perhaps more precisely, only one concept of law for us in the

present era), but the view is, of course, not self-evident.

A fuller articulation and defense of Razs ideas of the role of

necessity in jurisprudence will require participating in the debate

about whether there can ever be more than one tenable concept of

law, and whether, if there is more than one, the meta-theoretical

resources of conceptual analysis are sufficient (without recourse tomoral evaluation) to choose among the tenable concepts.

CONCLUSION

Legal theorists have come, rather late in the day one might think,

to explore seriously the methodology they use and the nature of

the claims they offer. Joseph Raz, especially in his most recent

work, has entered this meta-discussion, and offered some of the

most insightful and provocative ideas in the growing literature.

83

Two key and related questions are whether conceptual analysis

is appropriate and whether one can speak of necessary truths in

jurisprudence. Razs answer to both questions is yes. However,

it is key to understanding this claim that Razs idea of necessity

is distinctly different from what one finds elsewhere in philosophy:

sharply different from logical necessity, and almost as distant from

the type of necessity discussed in the context of Platonic philosophy

and natural kinds theories. It is perhaps a more Wittgensteinian

81 For a response to Perry, arguing that there are sufficient resources in con-

ceptual analysis to choose, see Coleman (2001, pp. 197210).

82 Raz (1996, p. 4).83 Other important contributors to this meta-discussion have included Jules

Coleman (1998a, b, 2001, 2002), Julie Dickson (2001), Stephen Perry (1995,

1996), Brian Leiter (1998, 2002), and William Lucy (1999).


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556 BRIAN H. BIX

(or Hegelian) notion, a necessity relative to a society and a time

or a way of life. However, this view of necessity requires further

elaboration, and it carries no automatic immunity to the recent

general criticisms of conceptual analysis in jurisprudence, nor doesit offer any easy answers to those challenges. Nonetheless, without

a clear understanding of what is meant by claims of necessity in

jurisprudence, we cannot begin the process of defending conceptual

analysis. And we should at least be open to the possibility that our

society contains multiple and conflicting concepts of law; perhaps,

as W. B. Gallie suggested for the concepts of art and democ-

racy, our concept of law is essentially contested (grounded in

different tenable interpretations of a complex paradigm or set of

paradigms).84

ACKNOWLEDGEMENTS

I am grateful to Jules L. Coleman, David Luban, Linda R. Meyer,

Lukas H. Meyer, Thomas H. Morawetz, Dennis M. Patterson,

Stanley L. Paulson, Joseph Raz, Brian Z. Tamanaha, and an

anonymous reader, for their comments and suggestions.

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Brian Bix - Raz on Necessity