Hybrid | Moral Facts cannot Ground Legal Facts if Law is an Institution

Please note that the time allocated for this seminar will be devoted to discussion of the paper. Click to download a copy.

About this event

To say that law is an institution implies some specific things about its ontology that precludes saying that legal facts can be grounded by moral facts. This has devastating implications for inclusive legal positivism, for Mark Greenberg’s moral impact theory, and for natural law theories that depend on law’s institutionality such as that of Jonathan Crowe. The argument is based upon the following three realizations. The first that officials cannot be generally wrong in their application of the sufficient conditions for institutional membership (though they can be wrong about the necessary conditions). This has been articulated by Amie Thomasson, but the intuition is likely at the heart of HLA Hart’s practice theory for the rule of recognition. The second is that just about every official legal ruling is also a determination of legal validity (and hence an application of institutional membership criteria). Finally, in most situations, every official legal ruling is institutionally valid until reversed by an official body of superior jurisdiction (and the situations in which this is not true can be ignored). One implication of these three realizations is that any time a legal system appears to ground legal facts on moral facts, the actual grounding is only in the beliefs of officials about those moral facts and not in the moral facts themselves. This means that a legal system cannot successfully include a moral criterion among its validity criteria, that moral facts cannot determine which of a variety of mappings from legal texts to applications is correct, and that institutional theories of law cannot make it a metaphysical requirement of law that it be rational. While these metaphysical truths give us good reasons to doubt the claims of courts to be finding rather than making the law, they also suggest institutional reasons for those beliefs.

About the speaker

Professor Kenneth M Ehrenberg started with the School of Law in 2017 and is Co-Director of the Surrey Centre for Law and Philosophy. Prior to that he held appointments in philosophy and law at the University of Alabama and at the State University of New York at Buffalo. In 2010, he was HLA Hart Visiting Fellow at the Oxford Centre for Ethics and Philosophy of Law. He holds a PhD in philosophy from Columbia University and a JD from Yale Law School.

Professor Ehrenberg’s primary interests are in general jurisprudence - especially jurisprudential methodology, legal ontology, legal authority and normativity, and legal validity - and the epistemology of evidence law.

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