Barbara Levenbook

In his “Integrity: Justice in Work Clothes,” Postema assumes the task of showing that integrity is a genuine moral value of political communities, distinct from other values such as justice and fairness. Postema’s conception of integrity borrows much from Dworkin’s, but also differs from it in an important respect. As anyone familiar with Dworkin’s theory would expect, Postema’s idea of integrity is a kind of fidelity in laws (“practical directives”) and policies to principles arising from what Dworkin famously called “past political decisions of the community.” It is fidelity to a conception of justice that fits and unifies these past decisions (and present ones), a conception the community can be viewed as forming. Postema’s innovation is to see integrity as “complex,” incorporating both “respect” for the past and also “regret.” Because of regret, any set of principles fitting the past will have some compromised coherence – indeed, some incoherence. Regret is consistent with preserving some currency for a morally incorrect decision, but limiting its force. The ultimate justification for viewing integrity as a virtue of law, Postema argues, is that it serves justice and fidelity, which he conceives of as other, more fundamental, values – provided, that is, that the principles express a “morally meaningful” conception of justice. Integrity thus understood allegedly binds officials to precedents in common law legal systems. So if Postema can succeed in his argument that integrity is a genuine moral value, he will have provided a moral justification for following precedent, even when the precedent is mistaken. Moreover, it will be a new kind of justification, an “internal justification” – one that provides a good reason for what Postema assumes is the rule of a precedent case. Success in his argument would be an important contribution to legal theory above and beyond the justification of precedent. Success would show that an interpretive conception of the nature of law also provides moral legitimacy to the resulting laws so conceived. Along with a stout defense of an interpretive theory of law – in particular, an integrity theory of law -- which Postema does not attempt, success would be the key to defending the widespread intuition that legal claims are not just formally normative, or normative in some special legal sense, but robustly – and so, morally – normative. Reasons for complying with law, properly understood, and for applying and enforcing it would be shown to transcend the realm of the merely prudential and the contingent. The conclusion of deep engagement with the details of Postema’s rich and intricate argument, unfortunately, reveals that it fails in its objective. Postema does not succeed in establishing that integrity is a distinct moral value of political communities. Moreover, the setting in which it is plausible that past principles morally justify following precedent is so special and (to some extent) ideal that Postema cannot be credited with offering a new justification for following precedent in actual common law systems, in the real world of the common law.

The social fact thesis, is, roughly, that law is ultimately a matter of social fact. Mark Greenberg and Kevin Toh have launched transcendental arguments against important or interesting general versions of the social fact thesis. Together, they can be read as posing a dilemma for the thesis. Suppose that many correct assertions of law are normative. Then, according to Toh, the considerations in virtue of which they are correct cannot ultimately be social facts, because the derivation of any normative conclusion requires a normative premise. Suppose that correct assertions of law are not normative. Then, according to Greenberg, they cannot state legal facts in virtue of social facts alone, because the very nature of law requires a particular kind of rational connection between determinants of legal facts and legal facts. Social facts cannot meet this demand; (non-legal) normative facts are needed. In short, Greenberg and Toh together claim that the social fact thesis is consistent with neither the existence nor the normativity of law. This essay meets their challenge.

This chapter discusses the retroactivity problem and how it arises when the idea that events occurring after a person’s life can harm that person is pursued. The common objection to this dilemma is the “no subject” type of response. The retroactivity problem is the result of making several assumptions jointly, many of which are initially plausible but none of which are actually defended. The first of these assumptions is referred to as Worse-Off, which states that an event harms a person only if it makes him worse off than he would have been if the event had not occurred. The second assumption, implied by the first, is referred to as Welfare, which states that an event harms a person only if it makes it the case that his welfare is lower than it would have been if the event had not occurred.

Mark Greenberg has made a transcendental attack on a metaphysical position that some notable legal positivists have held -- namely, that law is ultimately grounded in social facts. He has also pressed legal positivism at a point of perceived vulnerability – the failure of such positivists to develop and defend a compelling theory of legal content. Moreover, in his Moral Impact Theory of law, he preserves a necessary connection between legal obligations and good reasons for action that is absent in legal positivism. One of his arguments against legal positivism relies heavily on what he calls "the bindingness hypothesis"—namely, the claim that it is part of the “nature of law” that it is “supposed to operate” so as to “arrange matters” to “reliably ensure” that its legal obligations are genuinely, all-things-considered, binding. I argue that Greenberg’s defense of the bindingness hypothesis fails, and with it, one of his defenses of his Moral Impact Theory of Law. I attack two other defenses: the assertion that the Moral Impact Theory makes it easy to account for our concern with law, with the implication that legal positivism cannot so easily account for that concern; and the claim that his Moral Impact Theory fits appellate practice better than some views. I show that these the arguments for the Moral Impact Theory are inadequate. In response to Greenberg’s further argument that the Moral Impact Theory rescues the idea of legal obligation as genuine obligation, I argue that the Moral Impact Theory does so at a very steep price – one that is not worth paying.

The purpose of this essay is to defend a claim that a certain consideration, which I call unworkability, is universally and necessarily relevant to legal reasoning. By that I mean that it is a consideration that must carry legal weight in the justification of some judicial decisions in every legal system in which (1) all disputed matters of law can be adjudicated, and (2) all judicial decisions are to be legally justified. Unworkability's necessary relevance has important implications for a theory of relevance presented by Rolf Sartorius. On this theory, nearly all considerations that are relevant to a judicial decision are supplied by legal principles embedded in the legal rules and decisions, or by extralegal principles dependent, in some way, on the legal principles. (The exceptions to the embedding thesis that Sartorius would, no doubt, recognize are elaborated in the text but can be set aside here.) But there are possible legal systems which do not contain an embedded legal principle concerning unworkability; and nonetheless, unworkability is relevant to judicial reasoning in those systems. Hence, a theory of relevance that relies on principles embedded in the content of rules is too simplistic. Some substantive considerations are relevant for other reasons.

In various works, Mark Greenberg has positioned himself as an important critic of legal positivism. He has made a transcendental attack on a metaphysical position that some notable legal positivists have held -- namely, that law is ultimately grounded in social facts. He has pressed legal positivism at a point of perceived vulnerability – the failure of such positivists to develop and defend a compelling theory of legal content. Moreover, in his Moral Impact Theory of law, he preserves a necessary connection between legal obligations and good reasons for action that is absent in legal positivism. This last point may seem particularly attractive, even to those with positivist sympathies. One of his arguments against legal positivism relies heavily on what he calls "the bindingness hypothesis"—namely, the claim that it is part of the “nature of law” that it is “supposed to operate” so as to “arrange matters” to “reliably ensure” that its legal obligations are genuinely, all-things-considered, binding. I argue that Greenberg’s defense of the bindingness hypothesis fails. I attack two other defenses he raises for the Moral Impact theory: the assertion that the Moral Impact Theory makes it easy to account for our concern with law, with the implication that legal positivism cannot so easily account for that concern; and the claim that his Moral Impact Theory fits appellate practice better than some views. I show that these the arguments for the Moral Impact Theory are inadequate. In response to Greenberg’s further argument that the Moral Impact Theory rescues the idea of legal obligation as genuine obligation, I argue that the Moral Impact Theory does so at a very steep price – one that is not worth paying.

Everyone agrees that law is a constituent of social reality. Law seems to be a system by which conduct is governed and guided. Its usefulness consists, in part, on its ability to govern and guide conduct in its characteristic way. If laws guides the conduct of lay law subjects, then it must be (really) possible for the content of the laws governing their conduct to be known by them under standard social conditions. Moreover, if some degree of efficacy in guiding and governing the conduct of lay law subjects is an existence condition for a legal system, then in existing legal systems enough of the content of directive law is epistemically accessed by enough law subjects so that they can apply it to their situations and correctly determine the act-tokens required of them. In this chapter, I argue that these modest epistemic reflections have important implications for a theory of legal content that have been largely ignored. Holistic theories of legal content, such as Greenberg’s and Dworkin’s, are inconsistent with an adequate account of epistemic access. After demonstrating the same problem in two mainstream non-holistic theories of legal content -- the view that legal content is set entirely by official interpretive conventions, and the view that legal content is set entirely by official intentions – I propose a theory of legal content that meets the epistemic access challenge. On my approach, law is, at its core, centered upon the understandings of law subjects. (This view is meant to exempt constitutional provisions.) More precisely, the legal content of statutes and judicial decisions is built around, and preserves, a core of understandings and meaning-assignments that is the province of anyone with sufficient linguistic ability and relevant socialization. The details of this view are, roughly: (1) in the case of judicial decisions in a common law system, the social salience of the example the decision sets concerning behavior sets the default legal content; (2) in the case of statutory directives, the set of socially salient applications (behavior in situations) sets the default legal content. I say `default’ because my account of legal content is a two-stage account beginning with the default content and permitting a second stage in which considerations from other sources can operate on the default. Yet if a certain amount of efficacy in guiding lay law subjects’ behavior is a requirement for the existence of a legal system, there must be a core of legal content undistorted from its default social salience by a second stage operation. There is and must be a `law of the street’.

Older statutes sometimes alter the legal content of newer statutes in a way not apparent from the text of the newer statutes. The puzzle is how, even if a new statute is the choice of the current polis, the legal content created in part by the elderly statute is also the choice of the current polis. I consider several possible answers, including a legislative intent account and Dworkin’s, and argue that none of them is satisfactory. I then offer my own account, the De Re Account, which depends on distinguishing choosing under a description from choosing de re and noting that background norms and conventions sometimes determine what one does. In the case of legislation, because of the pragmatic norms for legal language and conventional practices against which a legislature acts, the legal content of the newer statute is chosen de re.

The social fact thesis, is, roughly, that law is ultimately a matter of social fact. Mark Greenberg and Kevin Toh have launched transcendental arguments against important or interesting general versions of the social fact thesis. Together, they can be read as posing a dilemma for the thesis. Suppose that many correct assertions of law are normative. Then, according to Toh, the considerations in virtue of which they are correct cannot ultimately be social facts, because the derivation of any normative conclusion requires a normative premise. Suppose that correct assertions of law are not normative. Then, according to Greenberg, they cannot state legal facts in virtue of social facts alone, because the very nature of law requires a particular kind of rational connection between determinants of legal facts and legal facts. Social facts cannot meet this demand; (non-legal) normative facts are needed. In short, Greenberg and Toh together claim that the social fact thesis is consistent with neither the existence nor the normativity of law. This essay meets their challenge.

Many contemporary philosophers of law agree that a necessary condition for a decision to be legally justified, even in a hard case, is that it coheres with established law. Some, namely Sartorius and Dworkin, have gone beyond that relatively uncontroversial claim and described the role of coherence in legal justification as analogous to its role in moral and scientific justification, on contemporary theories. In this, I argue, they are mistaken. Specifically, coherence in legal justification is sometimes specific to a branch of law, and there is nothing isomorphic to this in the models of moral and scientific justification. Although Dworkin and Sartorius rely on the concept of coherence, they do not explicate it. In the course of examining their views, this essay offers a partial analysis of coherence on their models. Finally, two canons of relevance, governing when global coherence considerations are appropriate to legal justification, are presented.

This is an essay on aggravating circumstances. Rather than defend a thesis that particular things ought to be considered aggravating circumstances to wrongdoing, I assume general agreement about major sorts of aggravating circumstances; and I ask instead how they work and what their operation reveals about moral standards in general and minimal expectations in particular. In the final section of this essay, I briefly consider what can be said in defense of the commonsense principle that punishment should be more severe if a crime is committed under aggravating circumstances than if it is not.

This essay presents a new theory of statutory application that is superior to two competitors. One of the competitors claims that statutory directives apply to act-tokens fitting the legislature's intention. The other holds that statutes apply to act-tokens that are of the genuine kinds named by the classifying words. These theories solve certain problems badly or not at all, respectively: (1) accounting for the capacity of statutes for epistemic guidance; and (2) avoiding literalism. Both do a limited job of accounting for the rationality of statutory promulgation. The theory developed here, social salience theory, does better on all counts. According to social salience theory, the default position is that statutes apply to act-tokens that are socially salient, given the linguistic and social contexts. The departure from that position is also social, produced by conventions to defer to experts on the statute's applications to particular cases

This essay challenges Dworkin's account of the virtues and consistency of applying the right answer as given by a certain interpretive theory of local law (hereafter, the D-theory) with democratic theory. D-theory adjudication does not have all the virtues Dworkin claims for it. It may involve judicial law-creation as well, rather than being confined to the discovery of preexisting legal rights. It may also involve any of the morally objectionable features of judicial law-creation, including unfairness. It is not immune to the objection based on democratic theory that Dworkin considers. Moreover, discretionary judicial law-creation is free of some of the vices that concern Dworkin. For these reasons, neither Dworkin's view of D-theory adjudication nor his denial that judges commonly have legislative discretion seems to be especially significant for the justification of appellate adjudication.