The practice-based objection to the ‘standard picture’ of how law works

Abstract

ABSTRACTMark Greenberg has suggested that there is a ‘standard picture’ of how law works, according to which the contribution that a legal text makes to the content of the law is constituted by the meaning of the words contained in that text. Greenberg and other critics have offered several objections to this Standard Picture (or SP), one of which is that it cannot account for important aspects of legal practice (such as the operation of certain principles of legal interpretation). In this article, I suggest that adherents of the SP may have available to them adequate responses to existing versions of this objection. I then offer a new version of the objection, according to which the SP is unable to account for what I call ‘retrospectively operating modifier laws’ – roughly, laws that alter the contribution that pre-existing statutes make to the content of the law. I consider several ways in which adherents of the SP might seek to account for retrospectively operating modifier laws, and contend that none of them is successful. I conclude that this version of the objection poses a serious threat to the SP, and also to claims made by some of the SP’s critics.