Necessary and Universal Truths about Law?

• Date: 01 March 2017
• Author: Brian Z. Tamanaha
• DOI: http://doi.org/10.1111/raju.12155
• Published date: 01 March 2017

Necessary and Universal Truths

about Law?

BRIAN Z. TAMANAHA*

Abstract. Prominent analytical jurisprudents assert that a theory of law consists of

necessary, universal truths about the nature of law. This often-repeated claim, which

has not been systematically established, is critically examined in this essay. I begin

with the distinction between natural kinds and social artifacts, drawing on the phi-

losophy of society to show that necessity claims about law require a fundamental

reworking of basic understandings of ontology and epistemology, which legal phi-

losophers have not undertaken. I show law is a poor fit for a priori and aposteriori

knowledge. I distinguish between universal application and universal truth, show-

ing the former is sound while the latter is not. I expose the implications that follow

from the initial selection of the central case of law, demonstrating that this choice

must be justified, and I revealtwo ways analytical jurisprudents shield their theories

of law from refutation. This analysis raises significant doubts about the claim byana-

lytical jurisprudents that they are identifying necessary, universal truths about the

nature of law.

1. Introduction

Analytical jurisprudents seek necessary, universal truths about law. “A theory con-

sists of necessary truths,” Raz (2009, 24, 17) asserts, “for only necessary truths about

the law reveal the nature of law. We talk of the ‘nature of law,’ or the nature of any-

thing else, to refer to those of the law’s characteristics which are of the essence of law,

which make law what it is.” A true theory of law holds for all places and all times.

“Naturally, the essential properties of the law are universal characteristics of law.

[...] When surveying the different forms of social organization in different societies

throughout the ages we will find many which resemble law in various ways. Yet if

they lack the essential features of the law, they are not legal systems” (ibid., 25).

Other contemporary jurisprudents have made similar statements. Coleman

(1998, 393 n. 24) asserts, “The descriptive project of jurisprudence is to identify the

essential or necessary features of our concept of law.” A theory of law must

“consist of propositions about the law which are necessarily true, as opposed to

merely contingently true,” writes Dickson (2001, 18), because “only necessarily true

* William Gardiner Hammond Professor of Law, Washington University. For critical comments

on earlierdrafts, I thank Kenneth Himma, Michael Giudice,John Gardner, andGr

egoire Webb er.

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Ratio Juris. Vol. 30 No. 1 March 2017 (3–24)

propositions about law will be capable of explaining the nature of law.” “To dis-

cover the law’s nature,” says Shapiro (2011, 9), “would be in part to discover its

necessary properties, that is, those properties that law could not fail to have.”

Alexy (2008, 290) similarly observes, “Thus, for the question ‘What is the nature of

law?’ one may substitute the question ‘What are the necessary properties of law?’

[...] Essential or necessary properties of law are those properties without which

law would not be law.” About the “nature of law,” Gardner (2012, 270) writes,

“They are things which must be true of something if it is to qualify as law, and

hence if it is properly to be included in the data set when making either empirical

or evaluative observations about law.”

This essay critically examines the claim that there are necessary, universal truths

about law. First I discuss the differences between natural kinds and social artifacts.

Philosophers of society have grappled with the challenges involved in grounding

necessary features in social artifacts, engaging issues that analytical jurisprudents

have not begun to address. Then I ask whether assertions about law’s necessary

features are a priori or a posteriori knowledge. Analytical jurisprudents do not agree

among themselves on the basis for their assertions, and most have not explained

their position at all. Next, I turn to universal truth claims about necessary features

of law, in particular Joseph Raz’s effort to straddle parochial and universal, demon-

strating that universal application is sound, but universal truth is not. Then I

expose crucial implications surrounding the pretheoretical identification of the cen-

tral case of law, which determines the purportedly necessary features of law. Ana-

lytical jurisprudents presuppose the paradigm of law without justification and

without considering alternatives that would produce theories of law with different

features. I also note that they have not provided clear criteria by which to test the

correctness of theories of law, and I reveal two ways they shield theories of law

from refutation through counterexamples. Finally, I close by suggesting how the

nature of law can be understood absent necessary features. The basic problem with

establishing necessary, universal truths about law is that concepts of law and legal

institutions vary and are socially and historically contingent and change over time.

2. Social Institutions and Necessary Features

Talk about essential and necessary features is puzzling in relation tosocial institutions

like law—based on ideas, beliefs, and actions—which come in a multitude of variations

and change over time. “Legal systems are not natural kinds [...]thathaveessences,”

Dworkin (2006, 95) objected, “They are social kinds: to suppose that law has an essence

is as mucha mistake as supposingthat marriage or community has an essence.”

When setting out their position, Raz and Shapiro both cite H2O as an example.

“If being made of H2O is of the nature of water,” Raz (2009, 27, 23 n. 7) writes,

“then this is so whether or not people believe that it is so, and whether or not they

believe water has essential properties.” “Being H2O is what makes water water,”

Shapiro (2001, 9) asserts, “With respect to law, accordingly, to answer the question

‘What is law?’ on this interpretation is to discover what makes all and only instan-

ces of law instances of law and not something else.”

Neither Raz nor Shapiro address the obvious ontological differences between

water and law. Philosophers generally agree the essential properties of water are

mind-independent internal properties: “we are accustomed to thinking of

4Brian Z. Tamanaha

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C2017 John Wiley & Sons Ltd. Ratio Juris, Vol. 30, No. 1