In Defense of the Standard Picture: Overcoming Death by a Thousand Cuts

• Published date: 01 September 2023
• Author: Larry Alexander
• Date: 01 September 2023
• DOI: http://doi.org/10.1111/raju.12390

© 2023 The Author. Ratio Juris published by University of Bologna and John Wiley & Sons Ltd.

Ratio Juris. Vol. 36 No. 3 September (199–213)

In Defense of the Standard Picture:

Overcoming Death by a Thousand Cuts

LARRY ALEXANDER*

Abstract. In a previous article, I defended the standard picture of law (or SP), so labeled by its

foremost critic, Mark Greenberg. In that article, I addressed Greenberg’s root- and- branch critique

of the SP and, to a much lesser extent, a related critique by Scott Hershovitz. But the Greenberg

and Hershovitz frontal attacks on the SP are not its only threats. Some theorists, while not attack-

ing the SP directly, give accounts of law that the SP cannot accommodate. Those theorists will be

challenged here, because if they are correct, the SP is not a tenable account of law.

1. Introduction

In a previous article (Alexander2021), I defended the standard picture of law (the

SP), so labeled by its foremost critic, Mark Greenberg(2011).1 In that article, I ad-

dressed Greenberg’s root- and- branch critique of the SP and, to a much lesser extent,

a related critique by Scott Hershovitz(2015). But the Greenberg and Hershovitz fron-

tal attacks on the SP are not its only threats. Some theorists, while not attacking the

SP directly, give accounts of law that the SP cannot accommodate. If those theorists

are correct, then the SP is not a tenable account of law.

What are these accounts of law that threaten the SP? One is that law consists in

part of principles that are not posited by lawmakers, an account previously associated

with Ronald Dworkin(1986; 2011) but more recently resurrected in a somewhat differ-

ent form by Mitchell Berman(2018a; 2018b). Another is that law in part is the product

of custom, an account that gets its clearest expression in a recent article by Stephen

Sachs(2019). And still another is that there is a law of interpretation that acts on posited

materials such as constitutions and statutes, a novel view found in an article by William

Baude and Stephen Sachs (2017). Those are the accounts that I intend to gainsay here.

1 In an article published a year after my 2021 defense, Bill Watson (2022) criticized Greenberg

on the ground that the SP, not Greenberg’s theory, was reflective of how lawyers and judges

actually reason about the law. He also usefully points out that interpretive disagreements are

resolved by the highest court in the jurisdiction and do not undermine the SP (ibid., 83), a point

I had made in an earlier article (Alexander1995, 326 n. 17).

This is an open access article under the terms of the Creative Commons Attribution License, which permits use, distribution

and reproduction in any medium, provided the original work is properly cited.

* I want to thank Brian Bix, Andrei Marmor, and Fred Schauer for their constructive and critical

comments on an earlier draft. And I want to thank my law school colleagues who commented

on this draft at one of our “half- baked papers” brown bag lunches. I especially want to thank

Steve Smith for his insightful comments about customs.