In Defense of the Standard Picture: The Basic Challenge

• Published date: 01 September 2021
• Author: Larry Alexander
• Date: 01 September 2021
• DOI: http://doi.org/10.1111/raju.12323

© (2021) John Wiley & Sons Ltd.

Ratio Juris. Vol. 34 No. 3 September 2021 (187–206)

In Defense of the Standard Picture:

TheBasic Challenge

LARRY ALEXANDER*

Abstract. In this article I defend what Mark Greenberg has labeled the standard picture of law

against the attack on it by Greenberg and Scott Hershovitz. I point out that law on the stand-

ard picture’s conception of it has moral virtuesthat Greenberg’s own moral impact theory

and Hershovitz’s similartheory lack. Moreover, it avoids a vicious circularity that bedevils

Greenberg’s theory.

There is something called the standard picture of law that has been attacked in sev-

eral recent influential articles. The term “standard picture” was coined by its most

persistent antagonist, Mark Greenberg, although Ronald Dworkin had been attack-

ing the standard picture for his entire career without labeling it as such (Dworkin

1986; Greenberg 2011b, 2014).

What is the standard picture of law, who holds it, and what are the complaints

about it? In brief— and I will go into much greater detail in what follows— the stan-

dard picture is that law consists largely of norms communicated to those to whom

the norms apply by those who have the authority to legislate norms (constitutional

ratifiers, legislators, administrators, courts). The critics of the standard picture assert

that the standard picture is not an accurate picture of law and cannot account for

law’s ability to create real duties and rights, cannot account for the existence of vari-

ous legal norms, and cannot account for how we interpret laws.

1. What Is the Standard Picture of Law?

The standard picture of law— hereinafter the SP— is an ontological account of law,

an account of what law is. On the SP account, law consists of norms regarding what

duties, rights, permissions, liabilities, and powers we possess; norms establishing per-

sons and institutions with the authority to legislate and alter those norms; and norms

establishing the methods for altering some of the other norms. All of these norms exist

because they have been declared to exist in communications by persons or institutions

that have the authority to legislate them. And that authority is ultimately traceable to a

* 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 that draft at one of our “half- baked papers” brown bag lunches.

[Correction added on 22 November 2021, after first online publication: Text updates were made

across the article in this version]

Larry Alexander

188

Ratio Juris, Vol. 34, No. 3© (2021) John Wiley & Sons Ltd.

norm that has not been legislated but is merely accepted by judges, other officials, and

perhaps the citizens— what H. L. A. Hart called the rule of recognition.

That, in a nutshell, is the SP account of what law is. And it is the account of law

that most ordinary people, as well as most lawyers and judges, would, when pressed,

probably give. That is why the SP account of law as norms communicated by those

with the authority to legislate them is the standard picture of law.

Before turning to the attack on the SP by Mark Greenburg, however, it is worth

asking why we would want a normative system such as law on the SP account, given

that we have a normative system that governs our conduct and is superior in author-

ity to any human- crafted norms: morality.

For morality presumably gives us, all things considered, most reason for acting or

refraining from acting and thus trumps any norms that conflict with its requirements.

Therefore, why would we ever create a normative system that occupies much of the

same field as morality and the norms of which might conflict with those given by

morality? Why have law on the SP account of it when we have morality?

2. The Moral Virtues of the SP Account of Law

Many would answer the question raised above by arguing that we need SP law be-

cause we are not angels. Law typically provides sanctions for the failure to obey its

norms, whereas morality does not.

I believe, however, that this argument for SP law is wrong. It is true that we are

not angels. But we need SP law because we are not omniscient gods, not because we

are not angels. For if some violate the strictures of morality, morality itself would tell

us how to respond. In other words, if we were gods— omniscient regarding what

morality requires of us at every moment— we would know how to treat the devils

among us. Morality would tell us how much force we could use to prevent their

wrongs or to capture them after they commit those wrongs. It would also tell us what

is the morally proper way to try them and how much to punish them.

The problem for which SP law is the remedy is that we are not omniscient gods.

We disagree about what morality requires of us because we disagree about morality’s

principles and disagree about the facts to which those principles must be applied.

And these disagreements are morally costly from everyone’s perspective. They pro-

duce moral errors because people act on the wrong principles or apply correct prin-

ciples incorrectly, because moral disagreements will result in morally costly conflict,

and because people cannot predict others’ behavior and coordinate with it.

Law on the SP account of it represents our attempt to guide behavior more clearly

than morality guides it. It settles what ought to be done when, because of the epis-

temic limitations mentioned above, merely referring people to morality— to doing

the morally right thing— will fail to provide that settlement, a settlement that every-

one believes is morally necessary (Alexander and Sherwin 2001, 11– 36).1

1 It is also true that if some moral principles can be realized in multiple ways, law on the SP

account can settle which of these ways should be determinative of our obligations. Law can, for

example, establish one of several otherwise morally optional systems of property rights, which

will then, for example, affect when a theft has occurred. Or it can establish one of several mor-

ally optional systems of taxation, so one will know how much in taxes is morally required of

her. Thanks to Brian Bix and Andrei Marmor for stressing this point.