Law’s Institutionality Entails Exclusive Legal Positivism

Speaker: Kenneth Ehrenberg, Professor of Jurisprudence and Philosophy (University of Surrey)

Chair: George Letsas, Professor of Philosophy of Law (UCL Laws)

About the Seminar:

To say that law is an institution is to imply that it must be instituted. Morality is not instituted and hence law cannot be based on it. I develop two metaphysically-minded arguments to show that law cannot be made to depend on something other than social facts, such as moral or rational truths. First, institutions are kinds of tools, and tools made by us imperfect humans must be capable of failure. But to say that law can be grounded some way in critical morality (either as a whole, or for particular legal propositions) would imply that it is not capable of failure in that it would be necessarily perfect at guaranteeing a morally perfect state of affairs or that the legal truth perfectly tracks the moral truth. Second, when we think of law as an institution, we are saying that officials cannot be generally wrong about whether the conditions sufficient for membership in the institution have been met, though they can be about the conditions necessary for membership. That is, their belief that a putative member has met the sufficient criteria for membership is constitutive of institutional membership and imparts the relevant institutional status to that member. A later decision that these beliefs were mistaken about a given member alters its status from the moment of that decision. But any imagined moral criteria of validity generally function as necessary conditions and so are not constitutive of membership in the way that the sufficient social criteria are. They act as gatekeepers or as justifications for exclusion but are relatively impotent when compared to the belief that sufficient conditions have been met. (Moral principles functioning as sufficient conditions only have limited application and are still through the lens of belief.) These facts are very powerful when applied to law via the realisation that even lower officials are making membership determinations applying sufficient conditions, and the institution affords those decisions the status of legally valid until higher officials strike the determination down. (An implication of this is that officials are making changes, rather than uncovering preexisting truths, when they strike down lower decisions.) These arguments are then used to resist inclusive or anti-positivists who say that moral facts can or must ground legal facts. In particular, I apply the arguments against Matthew Kramer’s versions of inclusive positivism and Mark Greenberg’s moral impact theory.

About the Speaker:

Kenneth M Ehrenberg is Professor of Jurisprudence and Philosophy at the University of Surrey School of Law, where he is also Co-Director of the Surrey Centre for Law and Philosophy. He writes on the social ontology of law (especially law’s institutionality and artefactual nature), legal and political authority, the relation of law to morality, legal normativity, and the epistemology of evidence law. He is the author of The Functions of Law (OUP 2016).

Photo by Christophe Hautier on Unsplash