Why the anti-positivists' concept of practice is too thin

Abstract

In this chapter, I defend legal positivism against recent assaults, specifically that of Greenberg (How Facts Make Law', Legal Theory, Vol. 10, 157-198, 2004 ('HFML'). His key argument is that value-based reasoning is required to transform social facts into legal content, and that this reasoning is based on values external to the social practice that constitutes the basis of law. In discussing possible objections to his theory, Greenberg identifies one according to which he relies on 'too thin a conception of law practices', and that 'properly understood, law practices can themselves determine the content of the law' (HFML 184). As he says, that objection 'claims that the additional substantive factors are part of law practices themselves.' (HMFL 186). Ruth Millikan's conventionalism allows for such an objection. Greenberg frequently presents a 'practice' as a series of social facts. (see e.g. 186). Millikan's concept of practice, as a lineage treats 'practice' as a series of social facts linked by the proper function they serve. In this sense, Greenberg's concept of practice is indeed too thin. In Millikan, the value factor that transforms social facts into legal content could be derived from within the practice. A series of independent behaviours is transformed into a purposeful practice because they serve the same proper function, and this allows the relevant and irrelevant behaviours within the practice to be distinguished. As such, the proper function is constitutive to the practice: it makes the practice what it is. It is also internal to the practice: the essence of the practice cannot be found outside it, and the proper function does not exist unless the practice does. Social facts are transformed into a law practice because a proper function is attributed to what has been said and done, and these words and behaviours are then reproduced because they serve this proper function. The usefulness of Millikan's theory is obvious once we assume (as Greenberg does) that the model of transforming social facts into legal content is a theory of interpretation. For Greenberg, the value-factor that enables the best interpretation model to be determined (the 'X' factor) is morality (HFML, 193). I argue, however, that that normative aspect does not need to be moral. It may be derived from its proper function, which does not need to have anything to do with moral norms.