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Symposium on law and coercion

Law’s function, descriptive conceptual analysis, and legal positivism

Some methodological qualms
Pablo A. Rapetti

Abstract

Coercion and the Nature of Law, by Kenneth Himma, claims to be an essay in descriptive conceptual analysis and there are good reasons to also take it as an essay in legal positivism. These amount to and imply certain methodological commitments. In this article I explore the compatibility between such commitments and Himma’s elaboration on the conceptual relation between law and coercion. The result will be that those commitments are not thoroughly honoured, as Himma’s argument moves from the descriptive to the normative when making the case for law’s “conceptual” function being peacekeeping and when fleshing out what sort of reasons for action the law provides.

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1 Introduction

1Kenneth Himma’s Coercion and the Nature of Law is a thoughtful and thought-provoking book. It constitutes a landmark in the current trend of renewed interest among Anglo-American legal philosophers in the relationship between law and coercion. Given the book’s length and the fruitful analyses it offers, I can but tackle a few of the topics it deals with. I will follow a particular route here, while many others remain open, awaiting future engagement. This constitutes just one of the many virtues of the carefully crafted book.

  • 1 Himma 2019.
  • 2 Nino 1980 had put the point in exactly the same terms.
  • 3 Himma 2020: 28–30.

2Coercion and the Nature of Law does not explicitly claim to be a study from a legal positivistic perspective, but it does claim to be the second step in a broader four-step intellectual effort to elucidate the nature of law. It is fair to understand it as an essay in legal positivism insofar as it is the continuation of Morality and the Nature of Law,1 a book aimed at advocating legal positivism (of an inclusive vein). That previous book includes a discussion of the difference between offering an analysis of a descriptive concept and an analysis of an evaluative concept (and this is used to distinguish between the positivist’s and the antipositivist’s projects),2 respectively; and the new one takes a step further, setting out to characterize conceptual investigations (“proper”?) as descriptive in character.3

  • 4 Himma 2020: 74–75.

3According to Himma, law is an artifact. This is a technical claim that can be broken down into two more basic claims: (i) law is a human creation, something manufactured by people, and (ii) it is manufactured in order to serve a certain function.4

(i) is the most basic claim and it is certainly shared by all legal positivists.

(ii) is what explains the characterization of the law as an artifact proper, as different from what is merely artificial: everything manufactured by humans is artificial, in the sense of not being produced by nature without human intervention; but not everything that is artificial is artifactual, in the sense that not everything that is artificial is defined (at least in part) by the function it is supposed or contrived to perform – as artifacts are. The artifactual makes for a subclass of the artificial.

4Whilst (i) is shared by all positivists, perhaps (ii) is not. Even more so: maybe the kinds of arguments one has to offer in order to sustain and flesh out a claim such as (ii) are foreclosed to a legal positivist. I intend to explore this in what follows.

2 Himma on law’s conceptual function and the Coercion Thesis

  • 5 Himma 2020: 1.
  • 6 Jackson 1998.
  • 7 Himma 2020: ch. 2. The detailed exposition of its methodological stance is undoubtedly one of the b (...)

5According to Himma, since law is an artifact, it has a specific conceptual function that a conceptual theory of law should discern. Every artifact is partially defined by the conceptual function it is supposed and reasonably contrived to serve. Himma argues that law’s function is that of keeping the peace among us, rational self-interested persons living in a world of material scarcity. He further holds that the law, qua legal system, can only be reasonably contrived to keep the peace if it authorizes courts to impose coercive sanctions for non-compliance with some mandatory legal norms prohibiting assaults on persons and property. Here enters the Coercion Thesis, which states that such authorization is a conceptually necessary condition for the existence of a legal system.5 A normative system, even if institutionalized in some sense, cannot count as a legal system if it lacks such authorization. Importantly, Himma submits that this stems from our own conceptual and linguistic practices regarding the law: it is a consequence of the way in which we ourselves think and speak of the law. A modest conceptual analysis like the one attempted by Himma – following Frank Jackson’s influential work6 – takes a two-layered approach in trying to elucidate the content of the concepts making up the object of its inquiry: it looks at the ways in which those concepts are used and thought of in our ordinary experience, and it tries to unveil and articulate the philosophical commitments that underlie those usages.7

  • 8 Himma 2020: 82.
  • 9 Hart [1961] 2012: 248–249. Hart speaks of law’s “purpose” and characterizes it as “providing guides (...)
  • 10 Himma 2020: 79 and 82.
  • 11 Himma 2020: 84.

6So, what is Himma’s argument in support of the claim that law’s conceptual function is to keep the peace? He begins by noting8 that the law, understood as the legal system, is comprised of legal norms contrived to govern behaviour by guiding it, which in turn requires such norms to be metaphysically capable of guiding it. So, he says, the conceptual function of a legal system “involves” regulating the behaviour of rationally competent subjects (like us). As is well-known, Hart sidestepped rather than fully addressed the question whether there is a distinctive “conceptual” function of the law, holding that jurisprudence should be content with stating only that the law is in fact used to regulate behaviour.9 Himma sides with those who oppose such a minimalist view and submits that this would be insufficient to fully specify law’s conceptual function. Regulating behaviour is indeed a (or the) characteristic use of legal systems. But the conceptual function of any artifact, he claims, is the ultimate end to which it is characteristically used.10 Law’s regulation of behaviour, as its characteristic use, is but a means to an ultimate end. A reason for this is that “regulating behaviour is not, after all, something that we characteristically value for its own sake.” Himma alternatively talks about that ultimate end as that which we need the law to accomplish. He acknowledges that there are many values that legal systems may be used to serve, but there is one specific foundational problem the law is contrived or used to solve. Identifying that problem amounts to identifying what rationally competent self-interested subjects like us might want a legal system for. We should therefore ask what our lives, being how we are, would be like in a world like ours if we did not have legal systems. Himma’s answer resorts to the Hobbesian idea of a state of nature, which he tellingly characterizes as “a well-known device in normative political philosophy.”11 Let us cut to the chase:

(1) a world without law would probably be like the Hobbesian state of nature;

(2) the state of nature is a scenario of war of all against all;

(3) the law comes into play to prevent that all-encompassing war;

(4) therefore, the law is supposed to keep the peace. Herein lies law’s conceptual function.

7Himma adds that

  • 12 Himma 2020: 88.

[i]t is not happenstance that every moral theory of legitimacy identifies keeping the peace as the basic function of a legal system. The idea that legal systems are needed and can be morally justified in worlds like ours to keep the peace accords with our own common-sense fears about the prospect of life without law.12

  • 13 Himma 2020: 260–261. This resembles Alexy’s famous antipositivist claim that a necessary, conceptua (...)

8He also subscribes this from a first-person standpoint, by claiming that peace is morally valuable and adding that law’s function of keeping the peace makes for a morally legitimizing purpose.13

9After identifying the law as an artifact whose conceptual function is to keep the peace, a conceptual theory of law, according to Himma, should explain how is it that the law is reasonably contrived to fulfil its function. This leads him to his four-chapter discussion of law’s presumed normativity:

  • 14 Himma 2020: 99.

the practices constituting something as a system of law are presumed normative in the sense that they give rise to something capable of persuading rationally competent subjects to change their minds about doing something prohibited by mandatory legal norms governing non-official behavior. Systems of law can do this only insofar as the practices constituting something as a system of law give rise to something rationally competent subjects characteristically regard, as a descriptive matter of contingent fact, as normatively relevant in deciding whether to comply because they should, as an objective matter of normative practical rationality, regard it as normatively relevant.14

  • 15 Himma is rather inconclusive about law’s capability to give rise to second-order exclusionary reaso (...)

10A conceptual theory of law should therefore show how law can give rise to reasons (and of what kinds). Himma argues that the law can only keep the peace by establishing mandatory norms backed by the threat of coercive sanctions; such norms give us reasons which are (a) practical, (b) defeasible, (c) motivating, (d) objective, (e) novel, (f) content-independent, (g) prudential, (h) first-order,15 and (i) related to non-official behaviour. The very fact that legal norms governing behaviour are backed by the threat of sanctions is the input by means of which the Coercion Thesis can be used to explain how the law can give rise to reasons, what sorts of reasons those are, and what content they may have. And according to Himma it is only the Coercion Thesis that is suited to offer such explanations.

11Roughly summing up: Himma conceives of the law as an artifact, which implies that it has a specific conceptual function, an ultimate end it is supposed to serve. Law’s conceptual function is that of keeping the peace. A conceptual theory should not only identify such ultimate end, but also show how the law can fulfil it. In a world like ours with people like us, law’s function is likely to be achieved only insofar as the law authorizes the imposition of coercive sanctions as a way of backing up its mandatory norms governing non-official behaviour. This is likely so because – as a matter of contingent fact – the threat of sanctions tends to induce rationally competent self-interested subjects like us in worlds like ours to take norms thus backed as normatively relevant, for – as a matter of objective rationality – we should take them as such. The Coercion Thesis holds that it is a conceptually necessary condition for the existence of a legal system that it authorizes the imposition of coercive sanctions. The Coercion Thesis is true given the premise that nothing can count as an exemplar of a particular artifact-type if it is not reasonably contrived to perform the conceptual function defining that artifact-type. The law would not be reasonably contrived to fulfil its function of keeping the peace if it did not authorize the imposition of coercive sanctions to back its mandatory norms: a normative system lacking such authorization cannot count as a legal system. Hence the Coercion Thesis’ truth. Explanatorily, the Coercion Thesis thus accounts for how the law gives rise to reasons, of what kinds, and with what kind of content.

3 Legal positivism and methodology

  • 16 That is, qua a methodological framework with which to approach the law and come to know and underst (...)

12Legal positivism’s main tenet qua a metalegal theory16 can be stated as follows:

MLP. The study and analysis of the law should be approached with a non-evaluative attitude, a perspective not committed to the values that the law (or particular legal practices) may or should embody or presuppose: a “genuinely” or at least “sensu strictotheoretical examination of the law should be non-evaluative, normatively aseptic, practically neutral.

13Although Himma takes his work to be an exercise in descriptive conceptual analysis, I doubt that his investigation on the relation between law and coercion satisfies (or is consistent with) MLP.

  • 17 And, of course, no lengthy intellectual work concerned with the law can be expected to be absolutel (...)

14His account on law’s “conceptual function” raises the first suspicions. As we have seen, Himma states that we do not value the regulation of behaviour for its own sake (nor do we need the law just for this reason), that his argument borrows a device belonging to normative political philosophy, that the function of keeping the peace is morally valuable, and that such a function grants the law a claim to moral legitimacy. Whereas these two latter statements can be taken as mere side comments,17 the former two cannot, for they have heavy bearing on the argument he deploys to establish a conceptual connection between law and coercion, i.e., the Coercion Thesis.

  • 18 Himma 2020: 76.
  • 19 Or, better yet, by others: the theorist should step back and assume a third-person standpoint. See, (...)

15Himma emphasizes that conceptual functions imply a kind of (at least presumed) normativity: functional normativity. But that is not tantamount to moral normativity.18 This is true, as far as it goes, but that is not far enough that we should thereby take MLP to be satisfied in his inquiry into law’s conceptual function, as MLP concerns the normative in general and not only the moral. Himma’s potential claim to satisfy MLP lies instead in holding that peacekeeping is what is generally supposed (by us)19 to be law’s function. He is just describing a social fact: the fact of what people take the law to be for. The problem comes with the reasons he employs to substantiate that descriptive (empirical?) claim.

  • 20 Himma 2020: 237.
  • 21 Most notably in Himma 2020: ch. 3.
  • 22 We saw earlier that, according to Himma, “every moral theory of legitimacy” identifies peacekeeping (...)
  • 23 The argument presupposes an empirical hypothesis but does nothing by itself to substantiate it.
  • 24 Something analogous may be said about Rawls’s original position, which Himma calls attention to as (...)
  • 25 Himma (2020: 91) expresses en passant the following perplexity: “It is striking that what is utterl (...)

16In an admittedly modest fashion, one may want to say that such a claim is consistent with MLP inasmuch as it stems from a sort of descriptive metaintuition: an intuition about the intuitions most people have (or would have) about what law’s conceptual function is. However, Himma rejects doing conceptual analysis by resorting only to ordinary intuitions without backing them with empirical evidence. He is explicit about this in criticizing Raz’s well-known society-of-angels thought experiment,20 and this also explains why he makes use of dictionary definitions to back some of his claims about the contents of our linguistic (and conceptual) practices.21 Unfortunately, he provides no empirical evidence for the claim that law is supposed to keep the peace.22 What he offers is Hobbes’s thought experiment, characterized as a device of normative political philosophy. Now, Hobbesian talk of a state of nature cannot be seriously taken as a historical report. And since the thought experiment does not provide any evidence for itself, we are still lacking any. A natural way of interpreting Hobbes here is as making a normative claim, which consequently allows for a normative argument: we should fear something like the state of nature; the state of nature is not possible (or at least is “unlikely”?) where a legal system reigns;23 therefore, we should establish a legal system.24 This would not satisfy MLP.25

  • 26 See, e.g., Himma 2020: 256.

17Apart from these initial qualms, Himma’s argument for peacekeeping being law’s conceptual function calls for further discussion. For example, his position is a bit shaky: sometimes he seems to leave the strong claim aside, to more modestly suggest that the peace being kept is a sort of prerequisite for the law’s ability to fulfil any other function.26 Now, this is problematic. If peacekeeping is no longer considered law’s ultimate end, it is not clear how it can impose any constraints in law’s structure and content. Specifically, we now lack support to claim that the authorization of sanction-imposing is a matter of conceptual necessity for the existence of legal systems. Prerequisites cannot constrain in the requisite way. Assume videogames have the conceptual function of entertaining. Peace being kept is a prerequisite of videogames entertaining – in a state of war of all against all (we may also assume) we would not have the opportunity to play videogames and find entertainment in them. Is then the authorization to somehow impose sanctions a feature of videogames that makes for a conceptually necessary condition for their existence? No, according to our previous assumption, because peace being kept is not something that videogames are supposed to accomplish.

18Should we alternatively understand by “ultimate” function that function which is “minimal,” so that, whatever the law is used for, it would have to be used at least for that minimal purpose? Well, the obvious candidate here is not peacekeeping but the regulation of behaviour. However, Himma rejected this as too minimal.

19Himma’s proposal thus stands in an uncomfortable middle ground between the strictly minimal function of regulating behaviour and other more robust alternatives. This is uncomfortable because, by Himma’s own methodological standards, the proposal should be argued for by resorting to empirical support showing that we ordinarily take the law’s ultimate end to be peacekeeping, and not by resorting to a normative argument showing that we should take the law’s function to be so. And it is empirical – not normative – support that is needed to remain consistent with MLP (and with descriptive conceptual analysis).

20There are two other elements in Himma’s work contributing to the problem.

  • 27 Himma 2020: 77–78.
  • 28 Himma 2020: 76. This might call into question the very idea that artifacts are partly defined, as a (...)
  • 29 Himma suggests as much several times. See, e.g., Himma 2020: 179–180. More generally, it seems sens (...)

21The first one has to do with the kind of capability that the law should have in order to perform its function. Himma claims it is neither logical, nor nomological, nor conceptual: it is a practical capability.27 The worry is straightforward: why should a conceptual theory of law dwell on law’s practical capabilities instead of its conceptual capabilities (whatever these may be)? This general question gets perhaps more pressing if narrowed down to refer to a conceptual theory intended to be positivistic, i.e., to satisfy MLP, since MLP bars dealing directly with practical concerns. The issue may be pushed one step further by taking into account Himma’s discussion of how artifacts can be dysfunctional. Automobiles are artifacts; their function is that of transporting persons and things from one place to another. But an automobile transiently unable to perform its function, or even a “totaled” one, is still an automobile.28 Although according to Himma legal systems may not be “totaled,” they may be transiently unable to keep the peace. This possibility, in conjunction with the already surveyed problem of undertaking a normative inquiry when trying to identify law’s conceptual function, leads me to wonder: may not a conceptual theory of the law rest content with identifying law’s characteristic use and maybe – only insofar as it can be done in a non-normative way – its (further) function, without additionally going into the question of how it could be reasonably contrived to perform it? Whether a particular legal system succeeds in performing its function is a contingent empirical matter; whether it is reasonably contrived to do so is a normative (practical) one.29 Both questions are beyond the scope of a conceptual theory of the law aiming to be thoroughly descriptive and consistent with MLP.

  • 30 See, e.g., Himma 2020: 133: “The reason that rationally competent self-interested subjects are like (...)
  • 31 See n. 38 below.
  • 32 For a sample survey, see McCain 2016: ch. 13. Interestingly, when Himma addresses in the appendix t (...)

22We come now to the second problematic element. The conclusion that – as a matter of contingent social fact – we are inclined to do as the law commands if it backs its commands with the threat of sanctions is drawn by Himma from the fact (assuming we are right in calling it thus) that – as a matter of objective practical rationality – we should do should do so.30 This applies also, though not only, to the way in which he contends that peacekeeping is law’s conceptual function. And this is why only a normative system authorizing the imposition of coercive sanctions for non-compliance could keep the peace and thus properly count as a legal system. But the inference is problematic, not only because it derives an empirical conclusion merely from a normative premise. It is also called into question by every empirical study feeding the conclusion that we systematically make irrational (or otherwise not “optimally rational”)31 choices in certain (not all, of course) aspects of our lives. And they abound.32

  • 33 Mackie’s famous argument from queerness might be recalled here. See Mackie 1977: 38–42.
  • 34 Only help – and only a little. As already seen, Himma’s resorting to anything we deem right should (...)

23Something being right does not by itself explain or help explain why we in fact lean towards it (if and when we do);33 at most, the fact that we deem it right does.34 Perhaps we could interpret Himma as claiming not that we are more likely to comply with the law because we should, but that it is rational for us to comply with it whenever we should (and we should whenever it backs its mandates with the threat of sanctions). But this new claim, too, runs into the problem we are considering – supporting it requires normative reasoning and is thus inconsistent with merely descriptive conceptual analysis and MLP.

  • 35 See, e.g., Dworkin 1986: chs. 2–3. See also n. 13 above.
  • 36 Himma 2020: 127.
  • 37 The general idea of artifacts as defined by their function, where function is understood as the mee (...)
  • 38 True, Himma acknowledges several times that he is thinking of us as not optimally rational, so talk (...)

24It follows from the foregoing discussion that, just as a descriptive conceptual theory of law consistent with MLP cannot normatively argue that peacekeeping (or anything else) is law’s conceptual function, so it cannot address the issue of law’s practical ability to perform its function. This naturally extends to Himma’s broad inquiry into law’s presumed normativity, as that inquiry amounts to the way in which he fleshes out the task of showing how the law can be practically capable of performing its function. Neither Himma’s identification of law’s conceptual function or his inquiry into law’s presumed normativity is made (or backed) by descriptive claims regarding what people actually think, believe, or assume: that identification and that inquiry are made by way of normative claims regarding what people should take law’s function to be and what they should hold concerning law’s normativity. The methodology employed by Himma at these junctures seems therefore much closer, for instance, to that of Dworkinian antipositivism35 than to positivism’s MLP. While Himma explicitly rejects the idea that the law should be shown in its best moral light (as Dworkin would have it), he does seem to take pains to show it in its best rational light. At least in the sense of trying to justify why it is rational for us to adopt legal systems in the first place,36 or why we need37 them.38

  • 39 See, e.g., von Wright 1958–1960: sec. 3.

25Finally, note that throughout my argument I have taken MLP to be a methodological requirement somehow different from the requirements inherent in a conception, like Himma’s, of conceptual investigations as descriptive in character. Although there is arguably no difference, I tend to think, like many others,39 that conceptual claims are neither descriptive nor normative. But this difference from Himma’s conception is irrelevant to the critique I have offered here, which has to do with some of Himma’s theses and arguments being normative.

4 Concluding remarks

26Kenneth Himma’s Coercion and the Nature of Law advances carefully crafted arguments aimed at showing a necessary conceptual connection between law and coercion. The book contains many rich discussions surrounding the topic, but such high value, if my analysis in this paper is correct, comes at a price: while the book is presented as a work in conceptual theory (and considering conceptual investigations as descriptive), some of its discussions cross the line towards normative theory. This crossing renders Himma’s effort incompatible with the methodological tenet comprising (meta)legal positivism and inconsistent with the initial conception of conceptual investigations and investigations that are descriptive in character. I do not think this is a major problem, since many interesting and important things to say regarding the law are indeed normative in character, but I believe it is not idle to point out the inconsistencies in works, such as Himma’s, which so clearly seek (and achieve) high levels of clarity, rigour, and substance.

  • 40 Himma 2020: 14.
  • 41 Here I assume the reader is familiar with Hart’s work.

27I cannot claim to have shown that Himma’s case for the authorization to coerce as a conceptually necessary feature of the law is fatally doomed. But if what I have held throughout this paper is sound, it provides at least some good hints in the direction of such a conclusion. Interestingly, Himma surmises en passant40 what in my opinion is a clever, forthright, and elegant way of showing a conceptual connection between law and coercion, at least for those who subscribe to a Hartian version of legal positivism.41 The argument may be put as follows:

(1) Every legal system has at its foundations an ultimate rule, the rule of recognition.

(2) The existence of a rule of recognition is a conceptually necessary condition for the existence of a legal system.

(3) The existence of a rule of recognition depends on a convergent (and conventional) practice, by certain people, of identifying and applying certain norms qua legal norms.

(4) Those people need be accepters of the rule of recognition, which is thereby a socio-legal norm.

(5) The attitude of norm-acceptance is a normative attitude consisting in a disposition to use the accepted norms to evaluate in their terms the actions and states of affairs to which they refer, and to consequently rate as correct (praising) or incorrect (criticizing), according to such norms, whatever conforms and whatever does not, respectively, to them.

(6) The critical aspect manifesting norm-acceptance is a form of coercion.

  • 42 Rafael Vázquez Álvarez is currently working on a lengthy PhD dissertation further elaborating and d (...)

(7) Hence, at the very foundations of every legal system lies a form of coercion. Coercion is thus a conceptually necessary condition for the existence of legal systems.42

  • 43 Thus, the argument may not be enough if, for example, we want to dispute Raz’s famous contention th (...)

28Here it is important to note two things: (a) on this view coercion is related not to non-official behaviour, as in Himma’s conception, but to official behaviour; (b) coercion, according to this argument, is not exactly a necessary part of the law, but a necessary condition of its existence. As Himma says, coercive sanctions backing a rule of recognition are informal in the sense that they are not authorized by the rule of recognition, or by any other legal norm.43 Perhaps (but only perhaps) this is as much as we can say, in thoroughly conceptual terms, about a necessary connection between law and coercion.

Acknowledgments.— Thanks to Diego Dei Vecchi, Julieta Rábanos, Guilherme Vasconcelos, and Rafael Vázquez Álvarez for their helpful comments on previous versions of this paper.

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Bibliography

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Bobbio, N. (1961). Sul positivismo giuridico. Rivista di filosofia, LII, 14–34.

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Hart, H. ([1961] 2012). The Concept of Law (3rd ed.). Oxford University Press.

Himma, K. (2019). Morality and the Nature of Law. Oxford University Press.

Himma, K. (2020). Coercion and the Nature of Law. Oxford University Press.

Jackson, F. (1998). From Metaphysics to Ethics: A Defence of Conceptual Analysis. Oxford University Press.

Mackie, J. (1977). Ethics: Inventing Right and Wrong. Penguin.

McCain, K. (2016). The Nature of Scientific Knowledge: An Explanatory Approach. Springer.

Nino, C. (1980). Dworkin and Legal Positivism. Mind, 89(356), 519–543.

Pavlakos, G. (2015). On Second-Order Morality. Jurisprudence: An International Journal of Legal and Political Thought, 6(2), 276–297.

Rapetti, P. (2015). Ángeles a punta de pistola. Introductory Essay to F. Schauer, Fuerza de ley (Spanish translation of The Force of Law, trans. P. Rapetti) (pp. , 9–46). Palestra.

Raz, J. (1999). Practical Reason and Norms (2nd ed.). Oxford University Press.

Redondo, M. (2018). Positivismo jurídico “interno.” Klub Revus.

von Wright, G. (1958–1960). The Varieties of Goodness. The Gifford Lectures. Available at https://www.giffordlectures.org/books/varieties-goodness/i-varieties-goodness. Also published as The Varieties of Goodness (Routledge & Kegan Paul (1963).

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Notes

1 Himma 2019.

2 Nino 1980 had put the point in exactly the same terms.

3 Himma 2020: 28–30.

4 Himma 2020: 74–75.

5 Himma 2020: 1.

6 Jackson 1998.

7 Himma 2020: ch. 2. The detailed exposition of its methodological stance is undoubtedly one of the book’s central virtues. I think there are many specifics that invite discussion, both regarding the elements making up said stance and the way (perhaps not entirely consistent) in which it is used throughout the book. While my focus in this paper will be on a methodological issue, many other interesting points of such a nature (and different natures) will be left out due to lack of space. It is also in this vein that, as Himma does, I will indistinctly speak of the law and of the concept of law.

8 Himma 2020: 82.

9 Hart [1961] 2012: 248–249. Hart speaks of law’s “purpose” and characterizes it as “providing guides to human conduct and standards of criticism of such conduct.”

10 Himma 2020: 79 and 82.

11 Himma 2020: 84.

12 Himma 2020: 88.

13 Himma 2020: 260–261. This resembles Alexy’s famous antipositivist claim that a necessary, conceptual connection between law and morality lies in law’s inherent claim to (moral) correctness. See, e.g., Alexy 2002: 34ff. By the end of the present article this resemblance may turn out to be not too surprising.

14 Himma 2020: 99.

15 Himma is rather inconclusive about law’s capability to give rise to second-order exclusionary reasons as well. He justifies this in that (i) the law can only give rise to second-order reasons if it is primarily capable of giving rise to first-order reasons, and in that (ii) the claim that the law gives rise to second-order reasons is idle anyway, since it explains nothing that needs to be explained. See Himma 2020: 166 and 174–178.

16 That is, qua a methodological framework with which to approach the law and come to know and understand it—this in distinction to positivistic theoretical studies, which are instances of the employment of such a kind of epistemic approach. The distinction is well established at least since Bobbio 1961. (Hart’s The Concept of Law, published the same year [Hart (1961) 2012], is not too explicit about the distinction, but it clearly presupposes and endorses it).

17 And, of course, no lengthy intellectual work concerned with the law can be expected to be absolutely devoid of normative observations. The problem comes when these do have an import in the supposedly conceptual, descriptive, main argument. Note, additionally, that there are passages in which Himma curiously seems to take these relations between law and morality further. Consider, e.g., the following: “It is a conceptual truth that law is an institutional artifact characteristically used, as a descriptive matter of contingent fact, to regulate the behavior of rationally competent subjects sometimes disposed to do things thought to be undesirable. An institutional normative system that does not contribute marginally to preventing these undesirable acts because putative subjects are otherwise conclusively indisposed to commit such acts has nothing to do with why they abstain from them and is not properly characterized as a system of law; there can be no efficacious legal regulation of real angels when it comes to undesirable acts – because real angels ... are morally infallible, morally impeccable, and hence never disposed to commit such undesirable acts” (Himma 2020: 119–120, emphasis in the original). In this passage, Himma seems to conclude, from the angels’ moral infallibility and impeccability, that they are not disposed to commit socially undesirable acts; but this seems to imply that what is (thought to be) socially undesirable must be morally wrong as well. And if it is conceptually necessary for a normative system to be a legal system that it contribute to preventing what is morally wrong, then there is a necessary conceptual connection between law and morality. The alternative, of course, is that there is no necessary connection between what is socially undesirable and what is morally wrong – but then it is not necessarily true that morally infallible and impeccable beings are never disposed to commit socially undesirable acts (or whatever acts are thought to be so).

18 Himma 2020: 76.

19 Or, better yet, by others: the theorist should step back and assume a third-person standpoint. See, e.g., Hart [1961] 2012: 242–243. See Redondo 2018 for a challenge.

20 Himma 2020: 237.

21 Most notably in Himma 2020: ch. 3.

22 We saw earlier that, according to Himma, “every moral theory of legitimacy” identifies peacekeeping as law’s most basic function. A general – and, I believe, unfortunate – feature of his book is its scarcity of bibliographical references. Which perhaps expresses some kind of “disengagement,” one might think (Kelsen’s absence is particularly notorious, as there are some clear affinities between Kelsen’s proposal and Himma’s). The passage that is relevant here is no exception to that feature. Even if we knew which theories he has in mind, they would still, I suspect, be non-sociological academic works, which can hardly be representative of what most people think or would come to think on the matter.

23 The argument presupposes an empirical hypothesis but does nothing by itself to substantiate it.

24 Something analogous may be said about Rawls’s original position, which Himma calls attention to as well.

25 Himma (2020: 91) expresses en passant the following perplexity: “It is striking that what is utterly uncontentious among normative political philosophers who take themselves to be explicating something implicit in our shared views about legitimacy is so contentious among legal philosophers who take themselves to be explicating our conceptual practices.” Perhaps my discussion helps dissipate the perplexity: normative political philosophers do not aim to explicate something implicit in our shared views about legitimacy; they offer normative proposals regarding which views about legitimacy we should have. Their task lies not in explicating but in justifying.

26 See, e.g., Himma 2020: 256.

27 Himma 2020: 77–78.

28 Himma 2020: 76. This might call into question the very idea that artifacts are partly defined, as a conceptual matter, by virtue of their function. I cannot address this issue here.

29 Himma suggests as much several times. See, e.g., Himma 2020: 179–180. More generally, it seems sensible to regard the task of elucidating what a practical (i.e., normative) reason is as a practical (i.e., normative) task itself (see Pavlakos 2015: 291) – at least if one distinguishes what a reason “really” is and what is considered to be a reason.

30 See, e.g., Himma 2020: 133: “The reason that rationally competent self-interested subjects are likely, as a descriptive matter of contingent fact, to regard the legal possibility of being punished for non-complying behavior as normatively relevant is that they should, as an objective matter of normative practical rationality, regard it as normatively relevant.” See also Himma 2020: 184, passim. Interestingly, there is a passage in which he talks about what we are likely to think without adding that we would do so because we should (Himma 2020: 172–173), but no further reason supporting that claim is provided.

31 See n. 38 below.

32 For a sample survey, see McCain 2016: ch. 13. Interestingly, when Himma addresses in the appendix the question whether there can be a system of municipal law with only compensatory damages, he says that such a system would probably not be enough to keep the peace, so a normative system indeed needs the possibility of imprisonment to count as a legal system. Nonetheless – and this is rather striking – he adds that (i) that claim is only a hypothesis, “because it is empirically predictive,” and (ii) that the issue of how likely such a system is to keep the peace is best “left to people trained in sociology and psychology” (Himma 2020: 259). I cannot see how this claim is different from all the others throughout his book in which he asserts – as a thesis, not a mere hypothesis – that we are likely to such and such. In this passage of the appendix, he does not add that compensatory damages would not probably be enough to keep the peace because it should not be so, but I find the lack of such an addition just as mysterious as the attempt to differentiate this empirically predictive claim from the many others the book includes.

33 Mackie’s famous argument from queerness might be recalled here. See Mackie 1977: 38–42.

34 Only help – and only a little. As already seen, Himma’s resorting to anything we deem right should be backed by empirical evidence.

35 See, e.g., Dworkin 1986: chs. 2–3. See also n. 13 above.

36 Himma 2020: 127.

37 The general idea of artifacts as defined by their function, where function is understood as the meeting of a certain need, may also raise some doubts: what exactly does Himma mean by “need” in this context? Is it not the case that we have made several things (artifacts) that we do not “really need”? Performing a certain function and meeting a certain need cannot be synonyms.

38 True, Himma acknowledges several times that he is thinking of us as not optimally rational, so talk of “best rational light” is admittedly a bit too much. But he also writes the following: “The practices constituting something as a legal system would not be equipped to provide something rationally competent subjects are characteristically likely, as a descriptive matter of contingent fact, to treat as subjective motivating reasons to refrain from prohibited acts if those practices did not provide something that, as an objective matter of normative practical rationality, they should treat as motivating reasons to refrain from such acts. Subjects are plausibly characterized as rationally competent only insofar as they are reason-responsive in a way that largely conforms to objective norms of practical rationality” (Himma 2020: 121, emphasis in the original). Now, this is also suspicious when conjoined with other claims made by Himma, namely, that objective practical rationality includes conclusive objective moral norms and that we are, indeed, basically self-interested and rationally competent. On the plausible (and, of course, admittedly normative) assumption that if there is an objective morality it largely requires of us to give up self-interest to a very considerable degree, being basically self-interested would be to a good extent contrary to being rationally competent. So, arguably, we might be either the former or the latter, but not both at once.

39 See, e.g., von Wright 1958–1960: sec. 3.

40 Himma 2020: 14.

41 Here I assume the reader is familiar with Hart’s work.

42 Rafael Vázquez Álvarez is currently working on a lengthy PhD dissertation further elaborating and defending this argument as key to showing law’s conceptual connection to coercion.

43 Thus, the argument may not be enough if, for example, we want to dispute Raz’s famous contention that coercion is not a conceptually necessary condition for the existence of law, assuming that he is interpreted as considering institutionalized coercion only. Raz’s argument consists in the well-known society-of-angels thought experiment (see Raz 1999: 154ff.), which Himma deals with in ch. 10 of his book (Himma 2020). Although I would like to discuss his analysis, lack of space prevents me from doing so. I have critically assessed Raz’s argument in Rapetti 2015.

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References

Electronic reference

Pablo A. Rapetti, Law’s function, descriptive conceptual analysis, and legal positivismRevus [Online], 45 | 2021, Online since 11 November 2021, connection on 26 January 2022. URL: http://journals.openedition.org/revus/7665; DOI: https://doi.org/10.4000/revus.7665

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About the author

Pablo A. Rapetti

Instituto Tecnológico Autónomo de México

Address: Río Hondo 1 – Altavista – Álvaro Obregón – 01080 Ciudad de México, CDMX – Mexico

E-mail: pablo.rapetti@itam.mx, pabloarielrapetti@yahoo.com.ar

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