Comments on Greenberg's Theory of Law

By Huiyeon Eim, Philosophy Editor, University of Southern California

she/her/hers

huiyeone@usc.edu

The most important objection to Greenberg’s theory of law is that moral truths do not seem necessary in the making of law. Before demonstrating the objection, let me explain Greenberg’s theory of law. Consider a toy case of a small island community. Suppose that we have an utterance as following as a candidate for a legal fact: (1) The eldest woman on the island said ‘No one may pick more than two coconuts.’ This fact does not lead to (2) it is illegal to pick more than two coconuts because, in order for (2) to be true, there should be another legal fact that says whatever the eldest woman says is the law. Now, let’s suppose another fact: (3) the eldest woman has proclaimed that ‘whatever I say is the law.’ The combination of law practices (1) and (3) still do not lead to the content of the law (2) since it is still not clear if what the eldest woman on the island says is actually the law. Here, Greenberg claims that adding more law practices like (1) and (3) will not lead to (2), so moral facts are the external resource that determines if something is a law or not.

However, let’s say there is a socially accepted rule that (4) the islanders all accept (3) as a rule to determine what counts as a law of the island. Further, suppose that based on (4), the island has a functioning legal system where laws are followed and the judicial system is in place. In this scenario, the legal fact (2) can be derived from (1), (3), and (4). This model of a legal system is Hart’s Rule of Recognition that determines what counts as law, and it seems to do what Greenberg claimed impossible without moral facts. Thus, Greenberg’s theory does not sufficiently support his claim that legal contents can’t be derived from purely descriptive facts about the system but must be derivable from descriptive plus moral facts.

What Greenberg got right about the system of law is that the relationship between the determinants of legal content and legal content must be rationally intelligible. Thus, the content of law should be accessible by any rational being with familiarity with legal practices. Based on this rational-relation doctrine, Greenberg attempted to find a theory of law where legal content can be derived from purely non-legal descriptive facts since derivation from legal content facts would not explain what makes a law law. However, as shown above, the role of moral truths in Greenberg’s theory of law might seem rational but is unnecessary. Moreover, Greenberg’s theory does not sufficiently explain where and how the legal nature and legal obligation are created from moral truths. The theory simply states that moral truths are required to confirm which model or principle is correct to derive the legal content from purely non-legal descriptive facts of a certain society. It lacks demonstrations on how moral truths are used to give laws legal obligations to be followed.

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Selected Bibliography

Greenberg, Mark. “HOW FACTS MAKE LAW.” Legal Theory 10.3 (2004): 157–198. Web.

Hart, H. L. A. (Herbert Lionel Adolphus) et al. The Concept of Law . 3rd ed. Oxford: Oxford University Press, 2012. Print.