Discussion on Kevin Toh’s Presentation "Legal Positivism and the Varieties of Legal Facts" (December 2023 - Seoul)

On "Legal Positivism and the Varieties of Legal Facts" (Based on K. Toh, “Legal Philosophy à la carte”, in D. Plunkett, S. Shapiro, & K. Toh eds., Dimensions of Normativity: New Essays on Metaethics and Jurisprudence (OUP 2019).)

 

Discussion

 

Jeyoun Son(Seoul National University)

 

I propose the following questions for consideration:

1.     Is the Fallacy of Double Duty a True Error?

This fallacy arises from the intricate distinction between L1, L2, and L3, and the absence of implicational relations among these propositions. Initially, L1 (pertaining to the existence of a legal system) and L3 (dealing with the validity of legal rules) seem distinct. However, considering the Recognition Rule (RR) is based on validation practice, a potential implicational relationship between L1 and L3 may exist.

Then, the clarity in differentiating L2 and L3 comes into question. Do propositions stating valid laws in a society not inherently affirm the truth and correctness of primary legal claims? Furthermore, is there a significant distinction or necessity to differentiate between L2a (a rule being treated as legally valid in a community) and L2b (its legal validity)? Could this be understood as an argument from Hart’s internal perspective, suggesting a progression from "being treated as valid" to "validity"?

To expose ambiguities in legal-philosophical discussions about L1-L3, a successful analogy between the validity of moral and legal norms is essential. The concept of "validity" bears a metaphysical status that seems more intuitive and inherent to legal positivism than to the issue of valid moral norms. However, this analogy appears plausible only under a certain non-cognitivist stance in moral philosophy, as I typically advocate. Realist positions in moral philosophy generally do not accept M1, implying that the existence of moral systems or valid moral norms does not depend on societal practices. Instead, they proceed independently of M1 in discovering moral rules and inferring the truth and correctness of primary moral statements. Thus, the claim in M1 that the existence of a moral system relies on facts about mores implies, from a realist perspective, that moral systems do not exist independently of social facts.

The main task of the metaethics I consider assumes that individual moral internal statements, based on social facts, are not cognitive beliefs about the existence of moral norms but rather express subjective attitudes like norm-acceptance. This perspective eventually reduces the issues of the truth or correctness of specific moral rules or primary moral claims in a society to the existence of non-cognitivist or expressivist attitudes. These metaethical tasks aim not to discover moral norms as existing facts but to provide the best explanation for the meaning of these propositions, highlighting that such utterances are expressions of subjective attitudes rather than statements about the facts of the world.

Conversely, many legal positivists pursue a realist goal with (L1)-(L3), aiming to discover existing legal norms. The implications of (L1)-(L3) are markedly different from those of (M1)-(M3). When legal positivists address (L1)-(L3) as issues of specific social facts, they imply a realistic existence of these subjects. However, they contend that securing the existence of such realities requires collecting concrete facts about society members’ external expressions of non-cognitive, subjective moral statements. This does not imply a non-realist perspective that moral systems are non-independent of social facts. From a traditional legal positivist viewpoint, society members' norm-accepting attitudes are utilized to establish the realist status of normativity based on (cognitive or non-cognitive) attitudes towards legal norms, not for non-cognitivist explanations of norms.

This perspective is unrelated to non-cognitivist so-called “legal” claims. Traditional legal positivist theorists do not interpret (L1) as a non-realist stance towards law; rather, they advocate the opposite. In defending (L2) or (L3), these theorists aim to support a realist position on law.

 

2.     Brian Leiter’s Inquiry Regarding Hart’s Theory:

Revisiting Brian Leiter's question: Does (L3) lack "explanatory payoff" in Hart's theory? Leiter criticizes Toh’s idea that we only need to explain phenomena unaddressed by Bentham and Austin as unmotivated. 

a. Toh’s argument regarding the failure to infer the best explanation pertains only to Benthamite or Austinian “relevant data.” Toh argues that (L3) does not explain phenomena Hart believed Bentham’s and Austin’s theories failed to address, as detailed in Chapters 2 through 4 of "The Concept of Law," such as the transfer of sovereign power, the continuity of laws across sovereigns, and the existence of power-conferring rules. 

b. Hart's more complex theoretical framework, encompassing primary and secondary rules, commits him to (L3). Hart explicitly states that internal judgments of legal validity presuppose the RR that validates them, which exists only if the relevant internal-point-of-view practice exists. Therefore, internal judgments of legal validity assume a specific content of the RR, established by empirical facts about “actual practice,” directly endorsing what Toh terms (L3).

 

3.     Additional Questions:

a. How does the strict separation of L3 and the independent discovery of "legal" normative elements offer a better positivist explanation, particularly in distinguishing legal norms from other norms? 

b. What are the possibilities for identifying elements that constitute the truth or correctness conditions of various primary legal claims? Can legal positivism provide a compatible explanation for these independent elements, and can it distance itself from natural law theory skepticism? 

c. How does accepting L1 and L2, while rejecting L3, differ from sociological explanations of legal phenomena? Is this stance distinct from Dworkin's approach which rejects all three propositions?