Premise 1: Determinate Legal Content

The first premise of the argument is the following:

My use of the term “determinate” (like my use of “determine”) is metaphysical, not epistemic. That is, for the law to be determinate on a given issue is not for us to be able to ascertain what the law requires on that issue (or still less for there to be a consensus), but for there to be a fact of the matter as to what the law requires with respect to the issue. Thus, when I say that there is a substantial body of determinate legal content, I mean roughly that there are many true legal propositions (in the particular legal system). What do I mean by “legal propositions”?¹²

Premise 2: The Role of Law-Determining Practices

The second premise is:

The basic idea behind L is that the law depends on the law practices. L thus rules out, for example, the extreme natural-law position that the law is simply whatever morality requires. I take it, however, that very few contemporary legal theorists would defend this position or any other position that makes law practices irrelevant to the content of the law.

By the term “law practices” (or, more fully, “law-determining practices”) I mean to include at least constitutions, statutes, executive orders, judicial and administrative decisions, and regulations. Although it is unidiomatic, I will refer to a particular constitution, statute, judicial decision, and so on as a law practice. Hence a practice, in my usage, need not be a habitual or ongoing pattern of action. I need to clarify what I mean by saying that a practice can be, for example, a statute. Lawyers often talk as if a statute (or other law practice) is simply a text. It is of course permissible to use the word “statute” (or “constitution,” “judicial decision,” etc.) to refer to the corresponding text, and I will occasionally write in this way. But if law practices are to be determinants of the content of the law, the relevant practice must be, for example, the fact that a majority of the members of the legislature voted in a certain way with respect to a text (or alternatively the event of their having done so), not merely the text itself. So as I will generally use the term, “statute” (“constitution,” etc.) is shorthand for a collection of facts (or events),¹⁴

In general, then, law practices consist of ordinary empirical facts about what people thought, said, and did in various circumstances.¹⁵

When L says that law practices determine (in part) the content of the law, what sense of “determine” is involved? As noted above, a preliminary point is that L's claim is constitutive or metaphysical, not epistemic. That is, it is not a claim that we use law practices to ascertain what the content of the law is, but that such practices make it the case that the content of the law is what it is.

I maintain that the relevant kind of determination is not bare metaphysical determination but what we can call rational determination. The A facts rationally determine the B facts just in case the A facts metaphysically determine the B facts and the obtaining of the A facts makes intelligible or rationally explains the B facts' obtaining. Thus, L is the conjunction of two doctrines, a metaphysical-determination doctrine and a rational-relation doctrine. Let me elaborate.

I will make the (uncontroversial, I hope) assumption that there are facts that (1) are ontologically more basic than facts about legal content and (2) metaphysically determine that the content of the law is what it is. The metaphysical-determination doctrine is that these more basic facts that determine the content of the law non-redundantly include law practices.

Metaphysical determination can be brute. If the A facts are more basic facts that metaphysically determine the B facts, there is a sense in which the A facts explain the B facts, for the A facts are more basic facts, the obtaining of which entails that the B facts obtain. But there need be no explanation of why the obtaining of particular A facts has the consequence that it does for the B facts. To dramatize the point, even a perfectly rational being may not be able to see why it is that particular A facts make particular B facts obtain.

The metaphysical-determination doctrine is not enough to capture our ordinary understanding (which L attempts to articulate) of the nature of the determination relation between the law practices and the content of the law. We also need the rational-relation doctrine, which holds that the relation between the determinants of legal content and legal content is reason-based. In the relevant sense, a reason is a consideration that makes the relevant explanandum intelligible.¹⁷

To put it metaphorically, the relation between the law practices and the content of the law must be transparent.¹⁸

It bears emphasis that what must be rationally intelligible is not the content of the law but the relation between determinants of legal content and legal content. L holds not that the content of the law must be rational or reasonable but that it must be intelligible that the determinants of legal content make the content of the law what it is. For example, there must be a reason that deleting a particular word from a statutory text would have the impact on the law that it would in fact have.

In some cases in which more basic facts metaphysically determine higher-level facts, the more basic facts a priori entail the higher-level facts. Such cases provide a clear example of rational determination, for if the relation between the more basic facts and the higher-level facts is a priori, then a fortiori it is rationally intelligible. (The converse may not be true. It may be that the way in which the A facts determine the B facts can be intelligible without its being the case that the B facts are an a priori consequence of the A facts.) Before Saul Kripke showed that there are necessary a posteriori truths,¹⁹

The rational-relation doctrine does not build in any assumption that there must be normative (or evaluative) reasons for the law's content—that it must be good for the law to have particular content. This is important, because otherwise L would build in the conclusion of my argument. I have used the term “reason” in explaining L, but the reasons in question are considerations that make it intelligible why the law practices have certain consequences for legal content; the rational-relation doctrine leaves it open what kinds of considerations can make a conclusion intelligible. That a priori entailment is an example of the necessary kind of rational relation makes clear that the rational-relation doctrine does not assume that the reasons in question must be normative. Premises can a priori entail a conclusion without providing normative reasons.

For example, conceptual truth is capable of providing reasons in the relevant sense. (That John is walking entails that John is moving. This entailment is rationally intelligible in virtue of the conceptual truth that one who is walking is moving.) Hence L is consistent with the possibility that conceptual truths that are not value facts determine which mappings or kinds of mappings from law practices to legal content are acceptable. For example, it might be claimed that it follows from the concept of law that a validly enacted statute makes true those propositions that are the ordinary meanings of the sentences of the statute. On this view, that a statutory text says that any person who drives more than sixty-five miles an hour commits an offense makes it intelligible—in virtue of the concept of law—that the law requires that one not drive more than sixty-five miles an hour.

The general point, again, is that it is a matter for argument, not something presupposed by L, what kinds of considerations make it intelligible that one legal proposition is more supported than another by the determinants of legal content. In particular, L does not presuppose that one mapping from law practices to legal content can be better than another only to the extent that it better captures our reasons for action or only to the extent that it is morally better or better in some other dimension of value.²⁰

Why have I made the qualification that law practices partially determine the content of the law? Law practices must determine the content of the law. But, my argument continues, there are many possible ways in which practices could determine the content of the law. (Put another way, there are many functions that map complete sets of law practices to legal content.) Something other than law practices—X, for short—must help to determine how practices contribute to the content of the law (that is, to determine which mapping is the legally correct one). So a full account of the metaphysics of legal content involves X as well as law practices.

This conclusion can be expressed in two equivalent ways. We could say that practices are the only determinants of legal content but that an account of legal content must do more than specify the determinants. This formulation is particularly natural if X consists of necessary truths.²¹

Law Practices as Descriptive Facts

Let me now return to the question of what counts as a law practice. I have said that law practices consist of ordinary empirical facts about what people have thought, said, and done, including paradigmatically facts about what members of constitutional assemblies, legislatures, courts, and administrative agencies have said and done. I want to be clear about the exclusion of two kinds of facts. First, law practices do not include legal-content facts. Second, law practices do not include facts about value, for example, facts about what morality requires or permits.²²

As I said, I am assuming that the content of the law is not a metaphysically basic aspect of the world but is constituted by more basic facts. The reason for the first exclusion—of legal-content facts—is that law practices are supposed to be the determinants of legal content, not part of the legal content that is to be determined.

Suppose an objector maintained that the law practices that determine legal content are themselves laden with legal content. It is certainly natural to use the term “law practices” in this way. After all, the fact that the legislature passed a bill is legal-content laden: it presupposes legal-content facts about what counts as a legislature and a bill. Since legal-content facts are not basic, however, there must be non-legal-content facts that constitute the legal-content-laden practices. At this point, we will have to appeal to descriptive facts about what people thought, said, and did—the facts that I am calling “law practices.” For example, the fact that a legislature did such and such must hold in virtue of complex descriptive facts about people's behavior and perhaps also value facts. (If, in order to account for legal-content-laden practices, we have to appeal not merely to descriptive facts but also to value facts, so much the worse for the positivist thesis that the content of the law depends only on descriptive facts.) The convenience of talking as if law practices consisted in legal-content-laden facts about the behavior of legislatures, courts, and so on should not obscure the fact that there must be more basic facts in virtue of which the legal-content facts obtain. To build legal-content facts into law practices would beg the question at the heart of this paper—the question of the necessary conditions for law practices to determine the content of the law. (For ease of exposition, I will continue to use legal-content-laden characterizations of the law practices, but the law practices should, strictly speaking, be understood to be the underlying descriptive facts in virtue of which the relevant legal-content facts obtain.)

It is uncontroversial that certain kinds of facts are among the supervenience base for legal content: roughly speaking, facts about what constitutional assemblies, legislatures, courts, and administrative agencies did in the past. Of course, as just noted, such characterizations are legal-content-laden and are therefore shorthand for non-legal-content characterizations of the law practices. (I do not mean, of course, that it is uncontroversial exactly which facts of these kinds are relevant; I'll return to this point shortly.) There are at least two kinds of controversy, however, about the determinants of legal content.

First, it is controversial whether value facts are among the determinants of content. The reason for the second exclusion—the exclusion of value facts—is that this paper tries to argue from the uncontroversial claim that law practices are determinants of the content of the law to the conclusion that value facts must play a role in determining the content of the law. If law practices were taken to be value-laden, it would no longer be uncontroversial that they are determinants of legal content. (On the other hand, even those theorists who think that value facts are needed to determine the content of the law can accept that descriptive facts also play a role.) Moreover, unless we separate the descriptive facts from the value facts, we cannot evaluate whether the descriptive facts can themselves determine the content of the law. In sum, by understanding law practices to exclude value facts, I ensure that L is uncontroversial and I prepare the way for my argument that descriptive facts alone cannot determine the content of the law.

The second kind of controversy about the determinants of legal content is controversy over precisely which descriptive facts are determinants. I have mentioned some paradigmatic determinants of legal content. But there are other kinds of descriptive facts, for example, facts about customs, about people's moral beliefs, about political history, and about law practices in other countries that are arguably among the determinants of legal content. Also, somewhat differently, it is controversial which facts about judicial, legislative, or executive behavior are relevant. There can be debate, for example, about the relevance of legislative history, intentions of legislators and of drafters of statutes, legislative findings, judicial obiter dicta, and executive interpretations of statutes. I propose to deal with this second kind of controversy by leaving our understanding of law practices open and non-restrictive.

There are several reasons for this approach. First, my argument is that practices, understood as composed of descriptive facts, cannot themselves determine the content of the law. If I begin with a restrictive understanding of practices, my argument will be open to the reply that I failed to include some of the relevant facts. For this reason, I want to be liberal about which descriptive facts are part of law practices. Second, my argument will not depend on exactly which descriptive facts make up law practices. Rather, I will make a general argument that descriptive facts—in particular, facts about what people have done and said and thought—cannot by themselves determine the content of the law. Therefore it will not matter precisely which such facts are included in law practices. Third, my view is ultimately that the question of which facts are part of law practices—like the question of how different aspects of law practices contribute to the content of the law—is dependent on value facts. (Indeed, I will often treat the two questions together as different aspects of the general question of the way in which law practices determine the content of the law.) As we will see, that we cannot in an uncontroversial way specify which are law practices and which are not is one consideration in support of my argument for the necessary role of value. All we need to begin with is some rough idea of law practices, which can be over-inclusive.

In sum, let law practices include, in addition to constitutions, statutes, and judicial and administrative decisions, any other non-legal-content descriptive facts that turn out to play a role in determining the content of the law.²³

The exclusion of value facts should not be taken to suggest that law practices are to be understood in solely physical or behavioral terms. To the contrary, as I explain in the next section, I take for granted the mental and linguistic contents involved in law practices. In other words, law practices include the facts about what the actors believe, intend, and so on and about what their words mean.

Why L Should Be Uncontroversial

The metaphysical-determination doctrine should be relatively uncontroversial, certainly for those who accept that there are determinate legal requirements. Positivists, Dworkinians, and contemporary natural-law theorists as well as practicing lawyers and judges accept that constitutions, statutes, and judicial and administrative decisions are (nonredundant) determinants of the content of the law. That law practices may also include other descriptive facts to the extent that those facts are determinants of the content of the law obviously cannot make the metaphysical-determination doctrine controversial.

More generally, we began with the premise that there are determinate legal requirements. What makes them legal requirements is that they are determined, at least in part, by law practices. Contrast the requirements of morality (or, to take a different kind of example, of a particular club). If law practices did not determine legal content, there could still be moral requirements and officials' whims, but there would be no legal requirements. In order to think differently, one would have to hold a strange view of the metaphysics of law according to which the content of the law is what it is independently of all the facts of what people said and did that make up law practices, and law practices are at best evidence of that content. So I think it should be uncontroversial that law practices are among the determinants of the content of the law.

As to the rational-relation doctrine, it is fundamental to our ordinary understanding of the law and taken for granted by most legal theory, though seldom articulated. The basic idea is that the content of the law is in principle accessible to a rational creature who is aware of the relevant law practices. It is not possible that the truth of a legal proposition could simply be opaque, in the sense that there would be no possibility of seeing its truth to be an intelligible consequence of the law practices. In other words, that the law practices support these legal propositions over all others is always a matter of reasons—where reasons are considerations in principle intelligible to rational creatures. (A corollary is that to the extent that the law practices do not provide reasons supporting certain legal propositions over others, the law is indeterminate.)

I will not attempt to defend the rational-relation doctrine fully here but will mention a few considerations. Suppose the A facts metaphysically determine the B facts, but the relation between the A facts and the B facts is opaque. In that case, how could we know about the B facts? One possibility is that we have access to the B facts independently of our knowledge of the A facts. An example might be the relation between the microphysical facts about someone's brain and the facts about that person's conscious experience. Suppose that the microphysical facts metaphysically determine the facts about the person's conscious experience but that the relation is opaque. The opaqueness of the relation does not affect the person's ability to know the facts about his conscious experience, because we do not in general learn about our conscious experience by working it out from the microphysical facts. (Moreover, since we have independent knowledge of conscious experience, we might be able to discover correlations between microphysical facts and conscious experience even if those correlations were not intelligible even in principle.) To take a different kind of example, the microphysical facts may metaphysically determine the facts about the weather, and the relation may be opaque, but again, we do not learn about the weather by working it out from the microphysical facts.

A second possibility is that we do work out the B facts from the A facts but that we have a non-rational, perhaps hard-wired, capacity to do so. For example, it is plausible that the facts about what was said and done (on a particular occasion, say) determine whether what was said and done was funny (and to what degree and in what way). And we do work out whether an incident was funny from the facts about what was done and said. It is plausible, however, that the relation between what was said and done and its funniness is not necessarily transparent to all rational creatures; our ability to know what is funny may depend on species-specific tendencies; that is, there may not be reasons that make the humor facts intelligible; it may just be a brute fact that humans find certain things funny.²⁵

Law seems different from both of these kinds of cases. First, our only access to the content of the law is through law practices. It is not as if we can find out what the law is directly or through some other route. And the whole enterprise of lawmaking is premised on the assumption that the behavior of legislators, judges, and other law-makers will have understandable and predictable consequences for the content of the law.

Second, we are able to work out what the law is and predict the effect on the law of changes in law practices through reasons, not through some nonrational human tendency to have correct law reactions to law practices.

When lawyers, judges, and law professors work out what the law is, they give reasons for their conclusions. Indeed, if we find that we cannot articulate reasons that justify a provisional judgment about what the law is in light of law practices, we reject the judgment. By contrast, it is notoriously difficult to explain why something is or is not funny, and we do not generally hold our judgments about humor responsible to our ability to articulate reasons for them. A related point is that we believe that we could teach any intelligent creature that is sensitive to reasons how to work out what the law is.

It might be objected that although the epistemology of law is reason-based, the metaphysics might not be. It is difficult to see how such an objection could be developed. For present purposes, I will simply point out that when legal practitioners give reasons for their conclusions about what the law is, they believe that they are not merely citing evidence that is contingently connected to the content of the law; rather, they believe that they are giving the reasons that make the law what it is. The point is not that lawyers believe themselves to be infallible. Rather, they believe that when they get things right, the reasons they discover are not merely reasons for believing that the content of the law is a particular way, but the reasons that make the content of the law what it is. Although they would never put it this way, lawyers take for granted that the epistemology of law tracks its metaphysics. And the epistemology of law is plainly reason-based.

Legal theorists generally take for granted some version of the claim that the relation between law practices and the content of the law is reason-based. An example is H.L.A. Hart's argument that the vagueness and open texture of legal language have the consequence that the law is indeterminate.²⁶

In general, the large body of legal theory that has explored the question of whether law practices are capable of rendering the law determinate (and if so, how determinate) presupposes that law practices determine the content of the law in a reason-based way. If the relation between law practices and the content of the law could be opaque, any set of law practices would be capable, as far as we would be able to judge, of determining any set of legal propositions. (As long as there are as many possible sets of law practices as there are possible sets of legal propositions, there is no barrier to the content of the law's being fixed by the practices, and we would have no warrant to rely on our assessment of other putative prerequisites for practices to determine the content of the law.) In sum, the doctrine that law practices rationally determine the content of the law captures a basic conviction about the law that is shared by lawmakers, lawyers, and legal theorists and is supported by the epistemology of law.

Why does it matter to my argument that the relation between law practices and the content of the law is reason-based? This paper explores the necessary conditions for law practices' making the content of the law what it is. The central argument is that descriptive facts cannot determine their own rational significance—what reasons they provide. The argument therefore depends on the claim that the descriptive facts determine the content of the law in a reason-based way. It turns out that value facts are needed to make it intelligible that law practices support certain legal propositions over others.²⁸

The Scope of the Argument

Premises D and L tell us something about the scope of my argument. The argument is sound only for legal systems in which D and L are true. So my conclusions are limited to legal systems in which there are legal requirements that are determined in part by law practices. If there is a legal system in which there are no determinate legal requirements, my argument would not apply to it. Similarly, if there is a legal system in which law practices, understood as (facts about) various people's sayings and doings, do not play a role in determining the content of the law, my argument would not apply to it. For example, perhaps there could be a legal system in which the content of the law is determined exclusively by the content of morality or exclusively by divine will. In this paper, I do not address questions of the necessary conditions for something's counting as a legal system. It might be argued that a substantial body of legal requirements that are determined by practices of various officials or institutions is a necessary condition for the existence of a legal system, but I do not intend to pursue such an argument.

Value Facts?

In order for practices to yield determinate legal requirements, it has to be the case that there are truths about which models are better than others independently of how much the models are supported by law practices. Since practices must rationally determine the content of the law, truths about which models are better than others cannot simply be brute; there have to be reasons that favor some models over others.

We have seen that law practices cannot determine their own contribution to the content of the law. By contrast, value facts are well suited to determining the relevance of law practices, for value facts include facts about the relevance of descriptive facts. For example, that democracy supports an intentionalist model of statutes is, if true, a value fact. What about the relevance of the value facts themselves? At least in the case of the all-things-considered truth about the relevant values, its relevance is intelligible without further reasons. If the all-things-considered truth about the relevant considerations supports a certain model of the law practices, there can be no serious question of whether that truth is itself relevant, or in what way. The significance for the law of the fact that a certain model is all-things-considered better than others is simply the fact that model is better than others.

It might be suggested that an appeal to conceptual truth offers a way to avoid the conclusion that the content of the law depends on value facts. The idea would be that the concept of law (or some other legal concept), rather than substantive value facts, determines that some models are better than others. As noted above, conceptual truth is the kind of consideration that could provide reasons of the necessary sort. The question is whether conceptual truth does so in the case of law.

My response begins with two points about what notion of conceptual truth this kind of suggestion can rely on. According to what we can call a superficialist notion, conceptual truths are truths about the use of concept-words, truths that are tacitly known by all competent users of those words or are settled by community consensus about the use of the words. Given such a notion of conceptual truth, we should reject the idea that there are conceptual truths that can do the necessary work. Ronald Dworkin famously argued that disputes about the grounds of law are substantive debates, not trivial quarrels over the use of words.³⁹

When, for example, Justices of the Supreme Court debate whether legislative history is relevant to the content of the law, the dispute cannot be settled by appeal to agreed-on criteria for the use of words. A lawyer or judge who challenges well-established models is not ipso facto mistaken. For example, a lawyer could advance a novel theory according to which New Jersey statutes make no contribution to the content of the law (on the ground, say, that there is a constitutional flaw in New Jersey's legislative process). The claim would not be straightforwardly wrong merely because it goes against the consensus model, though it is likely mistaken on substantive grounds.

Second, we have seen that the practices of participants in the legal system cannot be the source of the standards that support some models over others. It follows that if conceptual truth is to be the source of the standards, conceptual truth must not be determined by the practices of participants in the legal system; it must depend on factors independent of our law practices.

The consequence of these two points is that if conceptual truth is to provide the needed standards, it would have to be conceptual truth of a kind that is not determined by consensus about the use of words and is not determined by our law practices. I am sympathetic to such a notion of conceptual truth. Given such a notion, however, it is not clear that an appeal to conceptual truth is a way of avoiding the need for substantive value facts. Instead, the conceptual truths in question may include or depend on value facts, for example, facts about fairness or democracy. At this point, the burden surely rests on a proponent of the conceptual-truth suggestion to offer a position that avoids the two problems that I have just described without collapsing into a dependence on substantive value facts.

A different kind of appeal to conceptual truth is possible. It could be argued not that there are conceptual truths about which models are better than others, but that conceptual truth determines that such issues are determined by a specific internal legal value. This appeal to conceptual truth does not attempt to avoid the need for value facts; it attempts to explain those value facts as internal to the law. I will turn now to the nature of legal value facts. It is worth noting, however, that an appeal to conceptual truth as the source of internal value facts will encounter the same challenge as the appeal to conceptual truth to avoid the need for value facts. Such an appeal requires an account of conceptual truth according to which truths about the concept of law are independent of our law practices yet also independent of genuine value facts.

I have argued that the content of the law depends on substantive value facts. What is the nature of those value facts? The most straightforward possibility is that, other things being equal,⁴⁰

A second possibility is that, in the special context of the law, the all-things-considered truth about the relevant considerations is that the standard for models is not the general, all-things-considered truth about the relevant considerations but some different standard. For example, it might be that, taking into account all relevant considerations, the Truth is that the legally correct resolution of value questions is the one that maximizes community wealth. According to this second possibility, special legal value facts are genuine value facts; they are the consequence of the application of genuine value facts—Truth—to the specific context of law.⁴¹

On the first and second possibilities, the content of the law depends on genuine value facts in a way that is inconsistent with both hard and soft positivism. A positivist might try to argue that even if my argument so far is sound, there is a third possibility. According to this possibility, there are substantive standards that within the law do the work of value facts in resolving value questions but are not genuine value facts. We might describe this possibility by saying that legal value facts are internal to the law.

The hypothetical positivist's suggestion that legal value facts are internal to the law would have to mean more than that they have no application outside of law. There could be legal value facts that were genuine value facts applicable only in the legal context. In that case, the second possibility would be actual, and the content of the law would depend at base on genuine value facts. The third possibility is supposed to avoid the conclusion that the content of the law depends on genuine value facts. Perhaps the idea would be that legal value facts matter only to those who are trying to participate in the legal system (and only to that extent). (As with the second possibility, a version of the third possibility would allow that the internal legal value can vary from legal system to legal system.)

I do not mean to suggest that the idea of internal legal values is unproblematic or even fully coherent. I therefore do not need to explain exactly what it would mean for there to be internal values. Nor do I need to explain what, other than the Truth, could make it the case that there is a special legal value. I mention the idea only because it seems to have some currency in philosophy-of-law circles. My point is simply that I do not claim in this paper to have ruled out the view that the content of the law depends on internal value facts rather than genuine ones.

I will briefly comment on the problems facing this view. We have already ruled out the possibility that law practices determine their own relevance to legal content. Therefore something other than law practices would have to determine the internal value standard—to make it the case that this standard was the relevant one for the law (or for the particular legal system). It is difficult to see what that could be other than the relevant considerations—the Truth. If we appeal to the Truth, however, we have returned to the first or second possibility.

Any account of internal value facts thus faces a challenge of steering between the law practices on the one hand and the Truth on the other. I have already described the way in which an attempt to ground internal legal facts in conceptual truth faces this challenge. But the challenge confronts any account of internal value facts. For example, suppose a theorist appeals to the function of law or legal systems to ground internal value facts. On the one hand, as we saw with conceptual truth, if the law's function is going to provide the value facts necessary for practices to determine the content of the law, that function must be determined by something independent of the law practices. On the other hand, if the law's function is determined by the all-things-considered truth about the relevant factors, an appeal to function is not a way of avoiding an appeal to genuine value facts. Until we have an account of internal value facts that meets the challenge, it is difficult to evaluate the potential of an appeal to internal value facts.

An internal-value view faces a more substantive challenge as well. Internal value facts would have to have appropriate consequences for the nature of law. In a normal or properly functioning legal system, the content of the law provides reasons for action of certain kinds for certain agents. Whether the content of the law can provide such reasons may depend on the nature and source of the legal value facts. For example, it is plausible that for a legal system to be functioning properly, the content of the law must provide genuine reasons for action for judges. An internal-value theorist must explain how legal content determined exclusively by law practices and internal value facts can provide genuine, as opposed to merely internal, reasons for action. More generally, we can investigate the nature of legal value facts by asking what role such facts must play in a theory of law.

The Role of Value Facts

Let us now turn to the role of value facts in determining the content of the law. Since I do not want to beg the question against the possibility of a special legal value (whether internal or not), I use “X” for that property in virtue of which models are better than others. X might be, for example, (the promotion of) wealth maximization, the maintenance of the status quo, security, fairness, or morality. (If there is no special legal value, X is the Truth, in the technical sense explained above.) Note that the fact that a particular model is favored by X may be a descriptive fact (e.g., if X is wealth maximization). In that case, the relevant value fact is that X is what the goodness of models consists in.

I will make two clarifications about the role of X and then consider the implications for the relation between law and value. The first point is that X only helps to determine which models are correct. X's favoring model A over model B is neither necessary nor sufficient for A to win out over B. As we saw in Section IV, practices play a role in determining which model is better. Hence the model that is best all things considered may not be the same as the model that is ranked highest by X alone. (For simplicity I sometimes omit this qualification.)

In Section IV we discussed the interdependence between models and legal content. We saw that if we hold law practices constant, different candidate models yield different sets of legal propositions. Without X, each mutually supporting pair of model and set of legal propositions is as favored as any other such pair, and indeterminacy threatens. X's independence makes it possible for the interdependence of model and legal content not to lead to global indeterminacy.

In particular, what bearing practices have on the legally correct model depends on which model is most X-justified in advance of any particular practices. For X constrains the candidate models of practices and thus makes it possible for practices to determine anything. Practices themselves have something to say about the second-order question of how practices contribute to the content of the law. But X helps to determine what practices have to say on that question. Roughly speaking, the legally correct model is the one that is most X-justified after taking into account practices in the way that it is most X-justified to take them into account.⁴²

The second point can be brought out with an objection. Suppose it is objected that X need determine only what considerations are relevant to the content of the law but need not go further and determine how conflicts between relevant considerations are to be resolved. According to this suggestion, X would eliminate some candidate models as unacceptable but would have nothing to say between models that give weight only to relevant aspects of law practices. The objector grants my argument that without an independent standard of relevance, practices could not determine which models were correct. The objector points out, however, that once we have an independent standard of relevance, practices themselves might be able to determine which models are correct.

Here is a brief sketch of a reply to the objector. In order for there to be determinate legal requirements, X must do more than determine what considerations are relevant; X must favor some resolutions of conflicts between relevant considerations over others. Otherwise, given the diversity of relevant considerations and the complexity of factual variation, law practices will not yield much in the way of determinate legal requirements. Inconsistent propositions of law (and inconsistent models) will typically have some support from relevant aspects of law practices. Therefore, in order for there to be determinate legal requirements, X must not only help to determine what considerations are relevant but must also help to determine the relative importance of elements of law practices and how such elements interact.

In fact there is a deeper problem with the objection. It assumes that there are discrete issues of what considerations are relevant to the content of the law and how the relevant considerations combine to determine the content of the law. It may be convenient to separate the two kinds of issues for expository purposes, but we should not be misled into thinking that they are resolved separately. It is not the case that there is an initial, all-or-nothing determination of whether a type of consideration is relevant and then an independent, further determination of the relative importance of the relevant considerations. Rather, the reason that a consideration is relevant determines how and under what circumstances it is relevant and how much force it has relative to other considerations.

For example, legislative history's relevance to the content of the law derives, let us suppose, from its connection to the intentions of the democratically elected representatives of the people. Thus, in order to determine how important legislative history is relative to other factors, we need to ask exactly how it is related to the relevant intentions and what the importance of those intentions is. The point is that the contribution to content of some aspect of a law practice and how it interacts with other relevant aspects depend on why the aspect is relevant. If this suggestion—that relevance and relative importance are not independent questions—is right, then in helping to determine the relevance of various considerations, X will necessarily be (helping to) resolve conflicts between relevant considerations.

I have argued that there is a certain kind of connection between law and value. I would like to conclude by saying something about the implications of this connection. Just for the purpose of exploring these implications, I will assume that X is morality. The point of this assumption is to make clear that even if morality were the relevant value, the consequences for the relation between law and morality would not be straightforward. As I will show, it would not follow that the content of the law would necessarily be morally good or even that the moral goodness of a candidate legal proposition would count in favor of the proposition's being true.

First, although (by assumption) morality provides legally relevant reasons independent of the content of the law, the legally correct model is not simply whatever model is morally best (or most justified). “Morally best” here means most supported or justified by moral considerations in advance of consideration of the practices of the legal system. The legally correct model need not be the morally best one in this sense because, as we have seen, practices also have an impact on which model is legally correct.

Second, morally good models do not guarantee morally good legal propositions. Even if the legally correct model was a highly morally justified one, the content of the law might be very morally bad. A democratically elected and unquestionably legitimate legislature could publicly and clearly promulgate extremely unjust statutes, such as a statute ostensibly excluding a racial minority from social welfare benefits. The judicial decisions may rely on highly morally justified models, ones that, among other things, give great weight to such morally relevant features of legislative actions as the clearly expressed intentions of the elected legislators. The most justified model, all things considered, will be a morally good one yet will yield morally bad legal content. In fact, in such a legal system less justified models could yield morally better legal content than more justified models. (In such cases, a judge might sometimes be morally obligated to circumvent the law by relying on the less justified model.)⁴³

Although morally justified models do not guarantee morally good legal propositions, it might be suggested that part of what makes a model morally justified is that it tends to yield morally good legal requirements.⁴⁴

Suppose that the suggestion were correct. According to one line of thought, it follows that the content of the law would simply be whatever it would be morally good for it to be (or more generally, whatever it would be most X-justified for it to be). In that case the practices would be irrelevant. This line of thought might therefore be taken to provide a reductio of my argument for the role of value in determining the way in which practices contribute to the content of the law.

The line of thought is not sound, however. First, even if the tendency of a model to yield morally good legal propositions counts in favor of that model, a variety of other moral considerations favor models that make the content of the law sensitive to relevant aspects of law practices. A model may be morally better, for example, to the extent that it respects the will of the democratically elected representatives of the people, protects expectations, enables planning, provides notice of the law, treats relevantly similar practices similarly, minimizes the opportunity for officials to base their decisions on controversial beliefs, and so on.

Roughly, we have a distinction between content-oriented considerations and practice-oriented considerations. The relative weight accorded by morality to these two kinds of considerations is a question for moral theory that I will not take up here. On any plausible account, however, morality will give substantial weight to practice-oriented considerations. So the morally best model (considered in advance of law practices) will make the law sensitive to relevant aspects of law practices.

Second, as we have seen, the legally correct model also depends on the law practices. Apart from the weight that morality gives to practice-oriented considerations, the practices themselves may support models that make the law sensitive to practices. (Contemporary positivists, my primary target in this paper, are likely to be sympathetic to the view that practices support models that make the law sensitive to practices.) For example, although I will not defend the claim here, in the U.S. and U.K. legal systems, practices themselves strongly support models that make the law sensitive to law practices. Practices are thus a second reason that the role of value need not have the consequence that the all-things-considered best model will be one that tends to yield morally good legal propositions. (Also, even a model that has a tendency to produce morally good legal propositions may not do so, given the law practices of a particular legal system.)

Third and finally, if we reflect on the argument for value's role in determining the content of the law, we see that it supports only a limited role for value, one that does not involve supplanting law practices or making them irrelevant. Our starting point was that law practices must determine the content of the law and that they must do so by providing reasons that favor some legal propositions over others. The crucial step in the argument was that law practices cannot provide such reasons without value facts that determine the relevance of different aspects of law practices to the content of the law. The argument thus supports the involvement of value facts in determining the content of the law only for a limited role: determining the relevance of law practices to the content of the law.

We can apply this point to the specific question of to what extent a legal proposition's goodness can help to make it true: the goodness (in terms of morality or of value X) of a candidate legal proposition is relevant to the proposition's truth only to the extent that its goodness contributes to making it intelligible that an aspect of a particular law practice has one bearing rather than another on the content of the law. I will call this the relevance limitation.

I want to emphasize that the point is only that the argument of this paper supports no more than such a limited role for value facts; the argument does not show that the role of value facts must be so limited. Whether there is some other or more expansive role for value in determining the content of the law is left open. This paper's argument for the conclusion that value facts play a role in determining legal content is that value facts are needed in order to determine the relevance of law practices to the legal content. The argument therefore supports only that role for value facts. There might, of course, be a different argument that shows, say, that morality or some other value supplants the law practices (though of course almost no contemporary legal theorist, least of all one of my positivist targets, thinks that there is such an argument).

Let us consider more specifically the implications of the relevance limitation. The limitation does not imply that the goodness of a legal proposition can never be relevant to its truth.⁴⁵

A Dworkinian theory of law provides a helpful example.⁴⁶

On a more sophisticated notion of justification, to the extent that a legal proposition is bent or gerrymandered, it will be less good at justifying law practices. (In the extreme case just considered, where a particular law practice is simply treated as an exception without further application, that practice is not justified at all by the propositions to which it is an exception.) I think it is plausible, though I will not argue the point here, that, given a proper understanding of justification, the Dworkinian model I have described respects the relevance limitation. (Below I will consider a different model, often attributed to Dworkin, that arguably does not respect that limitation.)

The relevance limitation implies that the goodness of a legal proposition is never sufficient to make it true. That value facts are needed to determine the contribution of law practices to the content of the law does not provide a basis for making law practices irrelevant. To put it another way, that a candidate proposition is a good one does not make it intelligible that the law practices, regardless of what they happen to be, support that proposition. It might be tempting to regard a model on which the goodness of a legal proposition can, at least in some circumstances, be sufficient to make it true as the degenerate or limiting case of a model that determines the relevance of law practices to the content of the law. The model determines that in the relevant circumstances, practices have no relevance. But though this description may be formally tidy, the argument that value facts are needed to enable law practices to determine the content of the law provides no support for a model on which value facts can make practices irrelevant. In other words, though we can describe a putative “model” according to which practices provide a reason favoring any particular set of legal propositions (the morally best ones, for example), it does not follow that practices could provide such a reason. What reasons practices provide is a substantive, not a formal, question.

We can apply this point to an intermediate case. Consider a model that includes rules for the contribution of law practices to the content of the law but also includes a rule of the following sort:

I suggest that R is not supported by this paper's argument for the role of value. In general, that legal proposition A has morally better content than legal proposition B does not ipso facto make it intelligible that law practices support A over B. Adding the hypothesis that law practices provide strong support for both A and B—support above some threshold level—does not change this conclusion. A moral reason for favoring proposition A over proposition B is not itself a reason provided by law practices, since it is independent of law practices. If this argument is right, my argument for the role of value facts does not support a role like that captured by R—one in which there is room for value facts to favor one legal proposition over another independently of law practices. (Again, however, the point is only that this paper's argument does not support such a role for value facts, not that such a role is necessarily illegitimate.)

In sum, even if value X were morality, it would not follow that the most morally justified model would be legally correct, and even a morally justified model would not guarantee morally good legal requirements. It is no part of the role of value argued for in this paper that the goodness of a proposition ipso facto counts in favor of the proposition's truth. The role of value is in determining the relevance of law practices to the content of the law.