How Much Can a Theory of Law Tell Us about the Nature of Morality: A Response to Mark Greenberg's 'How Facts Make Law'

Abstract

In his remarkable paper How Facts Make Law, Mark Greenbergargues that descriptive about certain social practices are not the only necessary determinants of legal content. In addition, he argues that facts - which he is committed to construing as moral - are another necessary determinant of legal content. Unlike Dworkin who defends his view the basis of a morally informed conception of what role law ought to play in a society, Greenberg defends his view on the basis of very general philosophical considerations unlike those which Dworkin himself relies (HFML 160) that are metaphysical in character and do not involve normative or meta-ethical claims. Indeed, Greenberg takes his argument to show, more generally, that descriptive about social practices cannot, by themselves, determine the content any social rule; value play a necessary role in determining the content of any set of social rules. In this response, I will focus primarily Greenberg's conclusion and the general structure of his deep and nuanced argument, and not the details of the argument. In particular, I will argue that, construed as doing the work Greenberg believes it does in refuting positivism, his conclusion that legal content is not possible without value has certain implications about the nature of morality that no purely metaphysical considerations about the relationship between social practices and the content of social norms can plausibly have. In particular, Greenberg's conclusion, together with the obvious (because extremely weak) truth that law is possible, seems to imply moral objectivism - a highly contested view in general ethical theorizing. Indeed, if Greenberg is correct, his view together with the obvious possibility of other kinds of social rules (like rules of language), seems to imply the truth of moral objectivism. I take this to be a reduction of his view, as it seems clear that no theory relying general metaphysical claims about social practices can bear such weight.