laws of nature critical thinking

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> Critical Thinking in Psychology
> The Nature and Nurture of Critical Thinking

Book contents

Frontmatter
List of Illustrations and Tables
List of Contributors
1 The Nature and Nurture of Critical Thinking
2 Evaluating Experimental Research
3 Critical Thinking in Quasi-Experimentation
4 Evaluating Surveys and Questionnaires
5 Critical Thinking in Designing and Analyzing Research
6 The Case Study Perspective on Psychological Research
7 Informal Logical Fallacies
8 Designing Studies to Avoid Confounds
9 Evaluating Theories
10 Not All Experiments Are Created Equal
11 Making Claims in Papers and Talks
12 Critical Thinking in Clinical Inference
13 Evaluating Parapsychological Claims
14 Why Would Anyone Do or Believe Such a Thing?
15 The Belief Machine
16 Critical Thinking and Ethics in Psychology
17 Critical Thinking in Psychology
Author Index
Subject Index

1 - The Nature and Nurture of Critical Thinking

Published online by Cambridge University Press: 05 June 2012

It was during a presentation on ways to enhance critical thinking in college classes that a jaded faculty member shot back at me, “What kind of thinking do you think I teach – noncritical thinking?” I assured this faculty member that no offense had been intended, although certainly it had been taken. In fact, often there is noncritical, or more appropriately labeled, rote memorization or lower level thinking that is taught and tested in many classrooms at all levels of education at the expense of higher order or critical thinking.

NONCRITICAL THINKING

Consider, for example, typical questions that might be found on tests given in developmental psychology classes. There is the ubiquitous question that asks students to list each stage of Piaget's theory of cognitive development, along with the age range for each stage, and an example of a cognitive task that can be accomplished at each stage. This is a basic recall question, even though there is an opportunity to provide an example, which allows for the application of the knowledge of what cognitive abilities become possible at each stage of development. The example given is almost always the same as an example that was presented in class or in the text. If this is the extent of students' knowledge, they are unlikely to be able to use Piaget's conceptualization of cognitive development in any applied setting (such as designing an age-appropriate toy or activity for a preschool) or in a novel or useful way.

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The Nature and Nurture of Critical Thinking
By Diane F. Halpern , Claremont McKenna College
Edited by Robert J. Sternberg , Yale University, Connecticut , Henry L. Roediger III , Washington University, St Louis , Diane F. Halpern , Claremont McKenna College, California
Book: Critical Thinking in Psychology
Online publication: 05 June 2012
Chapter DOI: https://doi.org/10.1017/CBO9780511804632.002

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A Brief History of the Idea of Critical Thinking

The intellectual roots of critical thinking are as ancient as its etymology, traceable, ultimately, to the teaching practice and vision of Socrates 2,500 years ago who discovered by a method of probing questioning that people could not rationally justify their confident claims to knowledge. Confused meanings, inadequate evidence, or self-contradictory beliefs often lurked beneath smooth but largely empty rhetoric. Socrates established the fact that one cannot depend upon those in "authority" to have sound knowledge and insight. He demonstrated that persons may have power and high position and yet be deeply confused and irrational. He established the importance of asking deep questions that probe profoundly into thinking before we accept ideas as worthy of belief.

He established the importance of seeking evidence, closely examining reasoning and assumptions, analyzing basic concepts, and tracing out implications not only of what is said but of what is done as well. His method of questioning is now known as "Socratic Questioning" and is the best known critical thinking teaching strategy. In his mode of questioning, Socrates highlighted the need in thinking for clarity and logical consistency.

Socrates set the agenda for the tradition of critical thinking, namely, to reflectively question common beliefs and explanations, carefully distinguishing those beliefs that are reasonable and logical from those which — however appealing they may be to our native egocentrism, however much they serve our vested interests, however comfortable or comforting they may be — lack adequate evidence or rational foundation to warrant our belief.

Socrates’ practice was followed by the critical thinking of Plato (who recorded Socrates’ thought), Aristotle, and the Greek skeptics, all of whom emphasized that things are often very different from what they appear to be and that only the trained mind is prepared to see through the way things look to us on the surface (delusive appearances) to the way they really are beneath the surface (the deeper realities of life). From this ancient Greek tradition emerged the need, for anyone who aspired to understand the deeper realities, to think systematically, to trace implications broadly and deeply, for only thinking that is comprehensive, well-reasoned, and responsive to objections can take us beyond the surface.

In the Middle Ages, the tradition of systematic critical thinking was embodied in the writings and teachings of such thinkers as Thomas Aquinas ( ) who to ensure his thinking met the test of critical thought, always systematically stated, considered, and answered all criticisms of his ideas as a necessary stage in developing them. Aquinas heightened our awareness not only of the potential power of reasoning but also of the need for reasoning to be systematically cultivated and "cross-examined." Of course, Aquinas’ thinking also illustrates that those who think critically do not always reject established beliefs, only those beliefs that lack reasonable foundations.

In the Renaissance (15th and 16th Centuries), a flood of scholars in Europe began to think critically about religion, art, society, human nature, law, and freedom. They proceeded with the assumption that most of the domains of human life were in need of searching analysis and critique. Among these scholars were Colet, Erasmus, and Moore in England. They followed up on the insight of the ancients.

Francis Bacon, in England, was explicitly concerned with the way we misuse our minds in seeking knowledge. He recognized explicitly that the mind cannot safely be left to its natural tendencies. In his book , he argued for the importance of studying the world empirically. He laid the foundation for modern science with his emphasis on the information-gathering processes. He also called attention to the fact that most people, if left to their own devices, develop bad habits of thought (which he called "idols") that lead them to believe what is false or misleading. He called attention to "Idols of the tribe" (the ways our mind naturally tends to trick itself), "Idols of the market-place" (the ways we misuse words), "Idols of the theater" (our tendency to become trapped in conventional systems of thought), and "Idols of the schools" (the problems in thinking when based on blind rules and poor instruction). His book could be considered one of the earliest texts in critical thinking, for his agenda was very much the traditional agenda of critical thinking.

Some fifty years later in France, Descartes wrote what might be called the second text in critical thinking, . In it, Descartes argued for the need for a special systematic disciplining of the mind to guide it in thinking. He articulated and defended the need in thinking for clarity and precision. He developed a method of critical thought based on the . He emphasized the need to base thinking on well-thought through foundational assumptions. Every part of thinking, he argued, should be questioned, doubted, and tested.

In the same time period, Sir Thomas Moore developed a model of a new social order, , in which every domain of the present world was subject to critique. His implicit thesis was that established social systems are in need of radical analysis and critique. The critical thinking of these Renaissance and post-Renaissance scholars opened the way for the emergence of science and for the development of democracy, human rights, and freedom for thought.

In the Italian Renaissance, Machiavelli’s critically assessed the politics of the day, and laid the foundation for modern critical political thought. He refused to assume that government functioned as those in power said it did. Rather, he critically analyzed how it did function and laid the foundation for political thinking that exposes both, on the one hand, the real agendas of politicians and, on the other hand, the many contradictions and inconsistencies of the hard, cruel, world of the politics of his day

Hobbes and Locke (in 16th and 17th Century England) displayed the same confidence in the critical mind of the thinker that we find in Machiavelli. Neither accepted the traditional picture of things dominant in the thinking of their day. Neither accepted as necessarily rational that which was considered "normal" in their culture. Both looked to the critical mind to open up new vistas of learning. Hobbes adopted a naturalistic view of the world in which everything was to be explained by evidence and reasoning. Locke defended a common sense analysis of everyday life and thought. He laid the theoretical foundation for critical thinking about basic human rights and the responsibilities of all governments to submit to the reasoned criticism of thoughtful citizens.

It was in this spirit of intellectual freedom and critical thought that people such as Robert Boyle (in the 17th Century) and Sir Isaac Newton (in the 17th and 18th Century) did their work. In his , Boyle severely criticized the chemical theory that had preceded him. Newton, in turn, developed a far-reaching framework of thought which roundly criticized the traditionally accepted world view. He extended the critical thought of such minds as Copernicus, Galileo, and Kepler. After Boyle and Newton, it was recognized by those who reflected seriously on the natural world that egocentric views of world must be abandoned in favor of views based entirely on carefully gathered evidence and sound reasoning.

Another significant contribution to critical thinking was made by the thinkers of the French Enlightenment: Bayle, Montesquieu, Voltaire, and Diderot. They all began with the premise that the human mind, when disciplined by reason, is better able to figure out the nature of the social and political world. What is more, for these thinkers, reason must turn inward upon itself, in order to determine weaknesses and strengths of thought. They valued disciplined intellectual exchange, in which all views had to be submitted to serious analysis and critique. They believed that all authority must submit in one way or another to the scrutiny of reasonable critical questioning.

Eighteenth Century thinkers extended our conception of critical thought even further, developing our sense of the power of critical thought and of its tools. Applied to the problem of economics, it produced Adam Smith’s In the same year, applied to the traditional concept of loyalty to the king, it produced the . Applied to reason itself, it produced Kant’s

In the 19th Century, critical thought was extended even further into the domain of human social life by Comte and Spencer. Applied to the problems of capitalism, it produced the searching social and economic critique of Karl Marx. Applied to the history of human culture and the basis of biological life, it led to Darwin’s . Applied to the unconscious mind, it is reflected in the works of Sigmund Freud. Applied to cultures, it led to the establishment of the field of Anthropological studies. Applied to language, it led to the field of Linguistics and to many deep probings of the functions of symbols and language in human life.

In the 20th Century, our understanding of the power and nature of critical thinking has emerged in increasingly more explicit formulations. In 1906, William Graham Sumner published a land-breaking study of the foundations of sociology and anthropology, , in which he documented the tendency of the human mind to think sociocentrically and the parallel tendency for schools to serve the (uncritical) function of social indoctrination :

"Schools make persons all on one pattern, orthodoxy. School education, unless it is regulated by the best knowledge and good sense, will produce men and women who are all of one pattern, as if turned in a lathe. An orthodoxy is produced in regard to all the great doctrines of life. It consists of the most worn and commonplace opinions which are common in the masses. The popular opinions always contain broad fallacies, half-truths, and glib generalizations (p. 630).

At the same time, Sumner recognized the deep need for critical thinking in life and in education:

"Criticism is the examination and test of propositions of any kind which are offered for acceptance, in order to find out whether they correspond to reality or not. The critical faculty is a product of education and training. It is a mental habit and power. It is a prime condition of human welfare that men and women should be trained in it. It is our only guarantee against delusion, deception, superstition, and misapprehension of ourselves and our earthly circumstances. Education is good just so far as it produces well-developed critical faculty. A teacher of any subject who insists on accuracy and a rational control of all processes and methods, and who holds everything open to unlimited verification and revision, is cultivating that method as a habit in the pupils. Men educated in it cannot be stampeded. They are slow to believe. They can hold things as possible or probable in all degrees, without certainty and without pain. They can wait for evidence and weigh evidence. They can resist appeals to their dearest prejudices. Education in the critical faculty is the only education of which it can be truly said that it makes good citizens” (pp. 632, 633).

John Dewey agreed. From his work, we have increased our sense of the pragmatic basis of human thought (its instrumental nature), and especially its grounding in actual human purposes, goals, and objectives. From the work of Ludwig Wittgenstein we have increased our awareness not only of the importance of concepts in human thought, but also of the need to analyze concepts and assess their power and limitations. From the work of Piaget, we have increased our awareness of the egocentric and sociocentric tendencies of human thought and of the special need to develop critical thought which is able to reason within multiple standpoints, and to be raised to the level of "conscious realization." From the massive contribution of all the "hard" sciences, we have learned the power of information and the importance of gathering information with great care and precision, and with sensitivity to its potential inaccuracy, distortion, or misuse. From the contribution of depth-psychology, we have learned how easily the human mind is self-deceived, how easily it unconsciously constructs illusions and delusions, how easily it rationalizes and stereotypes, projects and scapegoats.

To sum up, the tools and resources of the critical thinker have been vastly increased in virtue of the history of critical thought. Hundreds of thinkers have contributed to its development. Each major discipline has made some contribution to critical thought. Yet for most educational purposes, it is the summing up of base-line common denominators for critical thinking that is most important. Let us consider now that summation.

We now recognize that critical thinking, by its very nature, requires, for example, the systematic monitoring of thought; that thinking, to be critical, must not be accepted at face value but must be analyzed and assessed for its clarity, accuracy, relevance, depth, breadth, and logicalness. We now recognize that critical thinking, by its very nature, requires, for example, the recognition that all reasoning occurs within points of view and frames of reference; that all reasoning proceeds from some goals and objectives, has an informational base; that all data when used in reasoning must be interpreted, that interpretation involves concepts; that concepts entail assumptions, and that all basic inferences in thought have implications. We now recognize that each of these dimensions of thinking need to be monitored and that problems of thinking can occur in any of them.

The result of the collective contribution of the history of critical thought is that the basic questions of Socrates can now be much more powerfully and focally framed and used. In every domain of human thought, and within every use of reasoning within any domain, it is now possible to question:

In other words, questioning that focuses on these fundamentals of thought and reasoning are now baseline in critical thinking. It is beyond question that intellectual errors or mistakes can occur in any of these dimensions, and that students need to be fluent in talking about these structures and standards.

Independent of the subject studied, students need to be able to articulate thinking about thinking that reflects basic command of the intellectual dimensions of thought: "Let’s see, what is the most fundamental issue here? From what point of view should I approach this problem? Does it make sense for me to assume this? From these data may I infer this? What is implied in this graph? What is the fundamental concept here? Is this consistent with that? What makes this question complex? How could I check the accuracy of these data? If this is so, what else is implied? Is this a credible source of information? Etc." (For more information on the basic elements of thought and basic intellectual criteria and standards, see Appendices C and D).

With intellectual language such as this in the foreground, students can now be taught at least minimal critical thinking moves within any subject field. What is more, there is no reason in principle that students cannot take the basic tools of critical thought which they learn in one domain of study and extend it (with appropriate adjustments) to all the other domains and subjects which they study. For example, having questioned the wording of a problem in math, I am more likely to question the wording of a problem in the other subjects I study.

As a result of the fact that students can learn these generalizable critical thinking moves, they need not be taught history simply as a body of facts to memorize; they can now be taught history as historical reasoning. Classes can be designed so that students learn to think historically and develop skills and abilities essential to historical thought. Math can be taught so that the emphasis is on mathematical reasoning. Students can learn to think geographically, economically, biologically, chemically, in courses within these disciplines. In principle, then, all students can be taught so that they learn how to bring the basic tools of disciplined reasoning into every subject they study. Unfortunately, it is apparent, given the results of this study, that we are very far from this ideal state of affairs. We now turn to the fundamental concepts and principles tested in standardized critical thinking tests.

{ Taken from the , Sacramento, CA, March 1997. Principal authors: Richard Paul, Linda Elder, and Ted Bartell }

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In This Article Expand or collapse the "in this article" section Kant and the Laws of Nature

Introduction, general overviews.

Primary Sources
Secondary Sources
Constitutive Principles of the Understanding and Empirical Laws
Regulative Principles: Systematicity and Purposiveness
Laws in Mechanics
Kant’s Dynamical Theory of Matter and Chemistry
Historical Background
Organisms and Purposiveness
Teleological Explanation versus Mechanical Explanation

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Feminist Aesthetics and Feminist Philosophy of Art
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Kant and the Laws of Nature by Michela Massimi LAST REVIEWED: 15 November 2022 LAST MODIFIED: 30 August 2016 DOI: 10.1093/obo/9780195396577-0315

Immanuel Kant’s complex and nuanced view on the laws of nature has been at the center of renewed attention among Kant scholars since the late 20th century. Kant’s view is one of the best examples in the Early Modern period of the philosophical view of nature as “ordered” and “lawful” that emerged with the scientific advancements of the 17th and 18th centuries. Building on the extraordinary success of Isaac Newton’s mechanics and optics, but also on the burgeoning chemistry of Stephen Hales in England and Herman Boerhaave and Pieter van Musschenbroek in the Netherlands, among many others, Kant’s lifelong engagement with the natural sciences (broadly construed) influenced and fed into his mature Critical-period philosophy. Explaining why laws of nature seemingly govern the natural world (as much as the moral law regulates the realm of human freedom and choice) is key to Kant’s transcendental philosophy. Kant seems to embrace a coherent account of what it is to be a law, in moral philosophy and in theoretical philosophy. When it comes to theoretical philosophy (and in particular, to Kant’s philosophy of nature, which is our topic), the main question is how it is possible for us to come to know nature as ordered and lawful . Where does the lawfulness of nature come from? In the Critique of Pure Reason and in the Prolegomena , Kant held the view that our faculty of understanding is the primary source of nature’s lawfulness because the a priori categories of the understanding “prescribe laws to nature”—that is, they play the role of constitutive a priori principles for our experience of nature. Yet, already in the first Critique , and even more so in Critique of the Power of Judgment , Kant stressed the importance of the faculty of reason, first, and the faculty of reflective judgment, second—with their regulative principles—in offering a system of laws necessary for our knowledge of nature. The crucial distinction between constitutive principles of the understanding versus regulative principles of reason and reflective judgment leads, in turn, to a series of further distinctions in Kant’s philosophy. For example, it leads to the different status of laws in the physical sciences and in the life sciences, which in turn became the battleground for the debate concerning mechanical explanations versus teleological explanations.

Friedman 1992 and Friedman 2013 offer a very influential view in this debate (especially with the author’s latest interpretation of Kant’s Metaphysical Foundations ). Guyer 2005 provides an authoritative reading of systematicity in Kant’s work (both in moral philosophy and in theoretical philosophy), and Kitcher 1986 is a classic take on Kant’s systematicity, by a leading philosopher of science. Massimi 2014 charts the historical roots of Kant’s view back to Isaac Newton. Warren 2001 provides an insightful metaphysical take on Kant’s philosophy of nature. Watkins 2001 and Watkins 2005 are a must for anyone approaching the debate for the first time, by a world’s leading Kant scholar. Watkins and Stan 2014 is an excellent online entry for a detailed overview on Kant’s philosophy of science (from the Pre-Critical to the Critical periods).

Friedman, Michael. “Causal Laws and the Foundations of Natural Science.” In The Cambridge Companion to Kant . Edited by Paul Guyer, 161–199. Cambridge Companions to Philosophy. Cambridge, UK: Cambridge University Press, 1992.

DOI: 10.1017/CCOL0521365872.006

A now-classic article in the field, laying out Friedman’s influential reading of Kant on causality and laws.

Friedman, Michael. Kant’s Construction of Nature: A Reading of the Metaphysical Foundations of Natural Science . Cambridge, UK: Cambridge University Press, 2013.

DOI: 10.1017/CBO9781139014083

This is Friedman’s latest comprehensive study of Kant’s mature view on nature. Advanced reading for an expert audience. The introduction is accessible to a wider audience.

Guyer, Paul. Kant’s System of Nature and Freedom: Selected Essays . Oxford: Oxford University Press, 2005.

DOI: 10.1093/acprof:oso/9780199273461.001.0001

Authoritative collection of essays on Kant’s view on systematicity at work in freedom and nature, with a clear discussion of core issues.

Kitcher, Philip. “Projecting the Order of Nature.” In Kant’s Philosophy of Physical Science: Metaphysische Anfangsgründe der Naturwissenschaft, 1786–1986 . Edited by Robert E. Butts, 201–235. University of Western Ontario Series in Philosophy of Science 33. Boston: Reidel, 1986.

DOI: 10.1007/978-94-009-4730-6_7

A classic article in the field—recommended for beginners with an interest in Kantian legacy in philosophy of science.

Massimi, Michela. “Prescribing Laws to Nature, Part I: Newton, the Pre-Critical Kant, and Three Problems about the Lawfulness of Nature.” Kant-Studien 105.4 (2014): 491–508.

DOI: 10.1515/kant-2014-0023

A historically oriented article on the cultural milieu and open problems behind Kant’s view on the lawfulness of nature.

Warren, Daniel. Reality and Impenetrability in Kant’s Philosophy of Nature . Studies in Philosophy. New York and London: Routledge, 2001.

Short, clear, and pioneering book in advancing a metaphysical reading of Kant’s philosophy of nature in terms of causal powers.

Watkins, Eric. Kant and the Metaphysics of Causality . Cambridge, UK: Cambridge University Press, 2005.

This is Watkins’s influential monograph on some of the core metaphysical issues surrounding causality and causal laws in Kant’s philosophy (with their historical sources).

Watkins, Eric, ed. Kant and the Sciences . New York: Oxford University Press, 2001.

An accessible, first-class, edited collection covering a comprehensive range of topics within Kant’s philosophy of nature. Recommended for advanced undergraduate and graduate seminars.

Watkins, Eric, and Marius Stan. “ Kant’s Philosophy of Science .” In The Stanford Encyclopedia of Philosophy . Edited by Edward N. Zalta. Stanford, CA: Stanford University, 2014.

A comprehensive introductory essay on metaphysical and epistemological aspects of Kant’s philosophy of science, with a particular focus on the philosophy of the physical sciences. First published in 2003.

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Kant and the Laws of Nature

Michela Massimi and Angela Breitenbach (eds.), Kant and the Laws of Nature, Cambridge University Press, 2017, 288pp., $99.99 (hbk), ISBN 9781107120983.

Reviewed by Jessica Leech, King's College London

This is an excellent book that I expect to be extremely useful for anyone interested in Kant's views on necessity, nature, laws, and the natural sciences. I also believe it should be of interest to those working on current debates in these topics who wish to broaden their understanding of the history of these ideas. The book presents a range of philosophical work at the cutting edge, with many contributors engaging with recent work by others in the volume. For example, in chapter 1 Eric Watkins sets out a lucid account of Kant on laws in general, which is discussed by Karl Ameriks in chapter 2. In chapter 3 Paul Guyer presents his understanding of the systematicity of nature as a regulative ideal, and its relation to our knowledge of empirical laws of nature, whereupon in chapter 4 Hannah Ginsborg, in part in response to Guyer, presents her own view of the role that systematicity and purposiveness in nature play in our very ability to conceptualise the natural world. By the end of the book, one has a sense that one is up-to-date with several key questions, positions, debates, and developments of these topics of recent years.

The book has five parts: The Lawfulness of Nature, The Systematicity of Nature, Nomic Necessity and the Metaphysics of Nature, Laws in Physics, and Laws in Biology. Nevertheless, there are clear links between chapters in different parts, and indeed, the division between parts didn't always seem worthwhile to me. For example, Guyer's and Ginsborg's chapters are in different parts, despite their close links. This is not a criticism; merely a warning to readers that they should not be misled into thinking that all they need to know about, for example, systematicity, is to be found in Part II. Indeed, one of the most interesting and illuminating chapters is Angela Breitenbach's contribution (in Part V) on the laws of biology and how -- ultimately -- Kant's view on these is related to wide-scale and fundamental questions concerning the unity of nature and our place in it.

I will present a brief summary of the different chapters. I do not have space for a critical assessment of them all, but I will raise some of the issues that seemed most salient to me.

In chapter 1, Watkins argues that Kant has a univocal conception of law. Whilst laws can be practical, theoretical, a priori , empirical, constative, regulative, and so on, they all share the following features. A law is: (a) a necessary rule, that (b) is established by a spontaneous act. Watkins proposes to account for the variety of laws in terms of different kinds of necessity, different law-generating acts, and different faculties for performing those acts. For example, obligation , the faculty of reason, and the act of legislation , are taken to be distinctive of the moral law , whereas determination, the faculties of understanding and sensibility , and the act of prescription , are taken to be distinctive of empirical laws of nature .

In chapter 2, Ameriks unpacks a series of important but often overlooked distinctions amongst Kant's important notions of universality, necessity and law. This can be understood as groundwork for tackling a question of signal importance to Kantians, which might be put: Do features of mind ground universality, necessity and law, or it is universality, necessity and law that ground the nature and capacities of our minds? This connects to a concern that Ameriks raises for Watkins's account, namely, how to understand the crucial notion of the prescription of a law in a way that does not imply that we -- human-minded creatures -- literally create or make the laws of nature by prescribing them. Ameriks recommends that we understand 'prescription' in this context as meaning that something is, at least metaphorically, "written ahead of time", but not thereby literally created. In brief, we are not able to learn or to justify claims of necessity and lawfulness merely from empirical experience, and so in this sense reason must prescribe them itself. If the world is lawful, and we cannot learn of its lawfulness by experience alone, then reason's prescription of universality, necessity, and law is a condition of the intelligibility of the world and its lawfulness -- but it does not follow that reason literally injects lawfulness into the world.

Guyer (chapter 3) discusses a problem raised by Kant for our knowledge of empirical laws. According to Kant, a regulative ideal of the systematicity of nature is required for knowledge of particular causal laws. But this is a very demanding condition. Guyer contends that in arguing for the claim that 'we can know particular causal laws only as part of a system of such laws', Kant places 'substantive limits on our knowledge of nature' (53). Guyer thus claims that this is an importantly different problem from Hume's worry about induction, for whilst Hume's problem can supposedly be shrugged off at dinner time, forgotten at the backgammon table, and so on, Kant's is not so easily dismissed.

In chapter 4, Ginsborg picks up the thread of systematicity, asking: 'Why does the exercise of judgment require us to assume a priori that nature is systematic?' (72). One must find a genuine justification for the supposition that nature is systematic, not merely a reason why we (need to) postulate it, even if that postulation turns out to be mistaken. Where previous commentators have offered an answer in terms of the necessity of particular empirical laws (Guyer, Kitcher), Ginsborg gives a principle of systematicity a more fundamental role in our capacity to judge.

Ginsborg's approach proceeds via normative concerns. In brief, in his account of empirical conceptualisation -- conceptual sorting of objects -- Kant invokes the idea that such conceptual sorting must be appropriate to the objects. Next, given that we acquire empirical concepts from experience, we must be able to do at least some empirical concept sorting without a prior set of rules for how to do it: one is able to do something in a way that might appear to be rule-governed in the absence of a rule. Finally, these ideas are linked to the idea of a system of nature. Our practice of empirical conceptualization presupposes that nature is rule-governed and systematic. Together with the presupposition of normative fit, that 'nature ought to be , should be , or is meant to be judged by us in the ways in which we do in fact judge it,' (77) this requires that nature is, after all, itself suitably systematic.

Thomas Teufel (chapter 6) also discusses the transcendental role of the purposiveness of nature, and arrives at a similarly normative answer. Teufel argues that, for Kant, spontaneous synthesising activity presupposes the conceptualizability of the world -- 'that nature in fact exhibits a structure we can grasp' (119). Again, we might ask, what justifies us in the assumption that nature is, indeed, as we need it to be? Teufel answers: 'the possibility of object-determining syntheses (and, a fortiori , the possibility of human cognition as such) necessarily presupposes that nature exhibits at least a threshold of cognizable order' (126). Hence, if we are successful in cognition (as we may well assume that, at least sometimes, we are), then this confirms this order in nature.

The aim of chapter 5, by Rachel Zuckert, is to make sense of Kant's puzzling claim that we can never have knowledge of the soul, the world, and God, even though our ideas of these things have a positive epistemic role to play. Zuckert proposes to argue that 'that it is precisely as representations of unknowable objects, and as nearly empty, that the ideas are useful for scientific investigation on a Kantian view.' (89)

A question left open by Zuckert is how, precisely, to understand 'nearly empty'. She writes that nearly empty representations 'present us with mere aspirations, which are merely projected as objects' (90), and later, 'near emptiness' is glossed as 'thinness of their content' (106). But what should we take from this? Nearly empty ideas have no object; they lack a referent. They certainly have some content, but that content is at the same time 'thin' enough to (necessarily) fail to apply to any empirical object. One might be tempted to understand 'thin' as 'general' or 'non-specific', but that would seem to make it easier, not harder, for it to apply to empirical objects. Towards the end of the chapter, Zuckert suggests that, in fact, what is distinctive of the content is that we barely grasp it at all, for 'we have little conception of what we should claim, of what sort of property we should attribute to them [soul, God, etc.]' (106). So perhaps the ideas are not nearly-empty or thin in the sense that they lack detail , but rather we have only a tenuous or 'thin' grasp of them. That, in turn, would seem to suggest that there is more to grasp, if only we were able to. However, this doesn't fit well with Kant's account of these ideas as being generated by reason: for surely it can grasp its own ideas.

In chapter 7, James Messina distinguishes three interpretations of Kant on the laws of nature -- the Derivation Account, the Best System Interpretation, and the Necessitation Account -- and offers a defence of the Necessitation Account, according to which the laws of nature and their necessity arise from the nature of things. Messina draws out Kant's commitment to natures of things, and how these give rise to necessary rules -- laws of nature -- that guide their behaviour. Towards the end of the chapter, Messina grapples with a problem: what if these grounds of the laws are epistemically inaccessible, hampering our knowledge of the laws themselves? Messina's response is to distinguish between 'different types of a priori grounds of laws -- ones that are epistemically accessible to us and ones that are not' (146). However, there is, perhaps, an alternative, epistemically more optimistic, response worth exploring. Recent work in metaphysics (Demarest 2017, Kimpton-Nye 2017) [1] suggests that one can successfully combine an account of the source of natural necessity in the powers of things with a best-system interpretation of the laws: the laws arise from the best system describing the behaviour of nature as arising from the powers of natural objects. Perhaps a Best System Interpretation of the laws would make them more epistemically accessible to Kant, whilst incorporating Messina's account of the importance of the natures of things.

In chapter 8, Michela Massimi poses the question of how general, a priori laws of the understanding relate to the necessitation of particular events. Massimi proposes to attribute a kind of dispositional essentialism to Kant: things in nature have powers or dispositions that both flesh out the 'general template of cause-effect relation offered by the Second Analogy' (165) and ground particular manifestations of those powers.

I found Massimi's main proposal to be interesting, but some of her arguments difficult to follow. For example, she draws out some modal principles from Kant's remarks on ' ratio essendi '.

Ground of being < ratio essendi > is the ground of that which belongs to a thing considered according to its possibility, e.g., the three sides in the triangle are the ground of the three corners. (29:809) [2]

One claim that Massimi takes from this (and other) passage(s) is:

Given an essential property F that obtains in virtue of what it is to be x ( qua ground of being), positing x metaphysically grounds the possibility of F . (158)

As it stands, I struggle to understand this. For example, I wasn't sure what Massimi meant by a property obtaining. We might rephrase the claim as follows: Suppose that x is essentially F, because it is true in virtue of what it is to be x that F. Then, x metaphysically grounds the possibility of x being F . For example, suppose that a triangle, t , is essentially three-cornered, because it is true in virtue of what it is to be t that it is three-cornered. Then t metaphysically grounds the possibility of t being three-cornered. If this is right, then it immediately seems strange. Didn't Kant suggest that it was t 's having three sides that grounds having three corners, not t itself? Doesn't t 's being a triangle imply the necessity of its being three-cornered, not the mere possibility ?

On a different reading, the ground of being does not primarily ground a range of possibilities for a thing (although, insofar as the essential properties of a thing constrain its possibilities, it does so derivatively). Rather, the ground of being concerns what something must be like even to be possible. So it is not that if we posit a triangle, we thereby posit the mere possibility of having three corners; the triangle must have three corners, to be even possibly a triangle. This introduces a distinction akin to Aristotle's distinction between essence and property , according to which 'a property is something which does not indicate the essence of a thing, but yet belongs to that thing alone, and is predicated convertibly of it' ( Topics, 102a1:18-19). Whilst anything with three corners is a triangle, and any triangle has three corners, having three corners is not of the essence of a triangle, but is grounded in what it is to be a triangle. We might then posit an alternative modal claim:

If all and only Fs are Gs , but not essentially Gs , then the essence of what it is to be an F metaphysically grounds that Fs are Gs .

Whether or not this claim is independently plausible, at least it leaves room for the essential properties of things to be powers, in line with Massimi's overall view, for there is nothing to say that the essences and properties involved could not be dispositional rather than categorical.

The next three chapters engage with the laws of physics. In chapter 9, Daniel Warren considers the metaphysics of force laws, and their relation to intensive and extensive magnitudes. In chapter 10, Michael Friedman considers the debt of Kant's conception of force to the Newtonian conception. In chapter 11, Marius Stan considers how best we might reconcile Kant's physics with classical mechanics. In the final chapter (13), Catherine Wilson presents an historical overview of the development of Kant's thinking on nature, from his pre-Critical essay Universal Natural History and Theory of the Heavens through to his work towards the end of his life.

I've already noted that Breitenbach's contribution (chapter 12) connects Kant's account of laws in biology with more general considerations of the unity of nature. One might worry that because, for Kant, biological organisms 'cannot be explained according to the laws that unify all material natural phenomena' (239), it follows that nature is not, after all, unified according to these laws. However, Breitenbach argues that the teleological principles which we need to explain organisms shed light on, rather than threaten, the unity of nature. For teleology allows us to focus our attention on organisms as a particularly interesting part of nature. As she puts the point, 'we are using a non-natural idea to guide reflection on a natural phenomenon.' (246) I found this chapter particularly interesting, for it shows how we may be able to find a place in the natural world for things that are best understood in terms of ends.

I hope these summaries indicate the thorough treatment that this book offers of Kant and the laws of nature. Inevitably, many questions are left open, and issues remain unresolved, but it is a thought-provoking and worthwhile read.

[1] Demarest, H. (2017) 'Powerful Properties, Powerless Laws'. In Jacobs, J. (ed.), Putting Powers To Work: Causal Powers In Contemporary Metaphysics (Oxford: Oxford University Press), 39–54; Kimpton-Nye, S. (2017) "Humean Laws in an unHumean World". In Journal of the American Philosophical Association 3 (2):129-147.

[2] Kant, I. Lectures on Metaphysics (Cambridge University Press, 1997).

Laws of nature according to some philosophers of science and according to chemists

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Published: 11 September 2024

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Eric Scerri 1

The article contrasts the way that laws are regarded by some philosophers of science with the way that they are regarded by scientists and science educators. After a brief review of the Humean and necessitarian views of scienfic laws, I highlight difference between scientists who regard laws as being merely descriptive and philosophers who generally regard them as being explanatory and, in some cases, as being necessary. I also discuss the views of two prominent philosophers of science who deny any role for scienfic laws. I conclude that science educators should be wary of adopng the necessitarian view of scienfic laws.

Laws of Nature as Epistemic Infrastructure Not Metaphysical Superstructure

Laws of Nature

Avoid common mistakes on your manuscript.

Introduction

For many years numerous scholars have been advocating the value of including the views of philosophers of science into the teaching of science. Footnote 1 This is an endeavor which I too have attempted to further in several books and articles (Scerri 2000 ; Erduran, Scerri 2002 , Scerri 2020 ). Although I am a firm supporter of the value of importing some aspects of the philosophy of science into science teaching, I wish to question the value of considering the views of a particular school of philosophy. I would like to consider the relevance, or otherwise, of the necessitarian view of laws of science given what I see as the large gulf that separates this view from what I take to be that of scientists. In science education an aphorism is sometimes used to distinguish the nature of scientific laws and theories. It states that “laws describe, whereas theories explain”. This view of the matter appears to contrast rather sharply with that of many philosophers of science who consider that laws are themselves explanatory. In science education one teaches that many laws are encompassed by one theory and not vice versa. However, the role of scientific laws would seem to be far more ‘elevated’ according to philosophers of science such as Hempel who consider that scientific laws provide explanations rather than mere descriptions (Hempel 1965 ).

I will therefore concentrate on one major theme in modern philosophy of science, namely the nature of scientific laws or laws of nature in general. I do not propose any new philosophical account of the nature of scientific laws and my article is mostly descriptive of the current view among philosophers and science educators.

In philosophy this topic has a long and complicated history which has included the question of whether laws of nature are essentially matters of epistemology and observed regularities or whether they entitle us to claim the existence of necessary and inherent connections in the world. The first view was made famous by the philosopher David Hume, and has generally fallen out of favor among professional philosophers.

The need for an alternative view to that of Hume’s comes from the perception that we need to distinguish between genuine regularities, or true laws of nature, and accidental generalizations. For example, articles on laws of nature almost always begin by discussing the difference between versions of these two frequently cited examples.

1. There are no spheres of gold that are heavier than 10,000 kg.

2. There are no spheres of uranium-235 that are heavier than 10,000 kg.

These two potential laws of nature are regarded as being fundamentally different because of some simple scientific facts about gold and this particular isotope of the element uranium. The absence of spheres of gold that weigh more than 10,000 kg may well be true of the present as well as the past. However, there is no reason in principle, so the account continues, why humanity could not decide to cooperate together in order to break this putative law. If all the wealthy people in the world, as well as their governments were to give up all their gold reserves, it might be possible to construct such an enormous piece of pure gold. Statement 1 is therefore regarded as being an accidental law. To put it into different words, it so happens that no such large sphere of gold has ever been assembled together, but that is not to say that such an act is forbidden by nature.

Let me now turn to the second case of 235 U. Given the fact that this isotope is known to decay radioactively, there is no conceivable way in which a mass of 10,000 kg could ever be assembled together from the world’s reserves of uranium. More specifically, the critical mass of this isotope is about 56 kg which means that a greater mass would produce an explosion.

Philosophers of science have long regarded the difference between examples such as 1 and 2 as being deeply problematical and in need of a further analysis. Indeed, attempts to distinguish between accidental or coincidental laws, such as 1, and genuine laws such as 2, have generated a large literature and a cottage industry dedicated to getting to the bottom of this issue.

In my view such an approach does not sit comfortably with the way that scientific laws are regarded by scientists. Moreover, it is rather far removed from the manner in which science educators, who admittedly have different aims, present the nature of scientific laws or the difference between laws and theories in science. As I see it the metaphysical concern regarding laws and accidental generalizations may be irrelevant when it comes to gaining a better understanding science and for furthering science education. I say this because on my understanding accidental laws are are eventually rooted out and discarded. There is no harm in regarding an accidental law as being of the genuine variety until it becomes clear through observations that it is in fact accidental. And when such an event occurs, all that it means is that something that was once believed to be a genuine law would have served its purpose and would need to be superseded by a more general law. Alternatively, one would have learned how to stipulate the limitations of what was formerly believed to be a genuine law of nature.

Metaphysicians may well object to my scientific reading of the situation since they consider that whether something is a natural law or merely a constant regularity is a metaphysical question. For a metaphysician, if counterexamples to the putative law are found, it would no longer strictly be called an accidental generalization but rather, not a law. In this article I am denying this distinction and claiming that the metaphysical question is irrelevant to scientists and science educators. Footnote 2

Before moving on, I would like to return to the spheres of gold and of 235 U as discussed above and consider the matter from a more purely scientific perspective. What does the contrast between the two statements mean to a chemist for example? I would suggest that to a chemist, or any scientist, the contrast between the two cases is a consequence of the fact that 235 U decays radioactively, whereas gold does not. Alternatively, such contrasting cases in general might tell the scientist that there may be other laws of nature that are also acting such that a comparison between the two cases becomes inappropriate.

However, this glib dismissal of the philosophical work that regards the difference between cases such as 1 and 2 has been a little too quick, and I am getting ahead of myself. We need to pause to examine how philosophers in general and many philosophers of science have explored this issue.

Sophisticated regularity view of laws of nature

The sophisticated regularity view of laws of nature claims that there must be something at play outside a particular regularity that distinguishes it from an accidental regularity, which lacks this special attribute. This view has been developed by Dretske and consists of regarding genuine laws are universal generalizations that satisfy an additional criterion which this author labels X (Dretske 1977 ). Unfortunately, it is by no means clear what the identity of X might be, and authors have differed as to how to regard it. According to Nelson Goodman the X factor is the ability to make successful predictions, which is something that an accidental generalizations lack. Going even further back historically, Braithwaite’s view from 1953 falls under the umbrella of sophisticated regularity in the sense that he claimed to identify the X factor with the ability to function in successful explanations, again unlike accidental generalizations that fail to do so. Footnote 3

One virtue of these approaches, at least to some authors, is that there is no appeal to modal concepts (e.g., the counterfactual conditional, causation, dispositions) and no overt appeal to modality-supplying entities (e.g., universals). The systems approach, as it is sometimes termed, is the centerpiece of David Lewis’s view that,

“… all there is in the world is a vast mosaic of local matters of particular fact, just one little thing and then another” (Lewis 1986 ).

Another influential account of the laws of nature which remains within the regularity or

Humean view is the one also suggested by David Lewis. Footnote 4 For this author, and many others, the feature that distinguishes genuine laws from accidental regularities is that the former remain true in all possible worlds. Needless to say, this approach is plagued with problems concerning what it even means to speak of other possible worlds and how one might have access to such worlds if they exist. In the following section I will discuss some views on laws of nature that require laws to be ontologically stronger than mere regularities.

Universals and necessitation

In the late 1970s, there emerged a competitor for the systems approach and all other Humean attempts to say what it is to be a law. Led by Armstrong ( 1978 , 1983 , 1991 , 1993 ), Dretske ( 1977 ), and Tooley ( 1977 , 1987), the rival approach appeals to universals (i.e., certain kinds of properties and relations) to distinguish laws from non-laws.

Focusing on Armstrong’s development of the view, here is a concise statement of the universals approach:

Suppose it to be a law that F s are G s. F -ness and G -ness are taken to be universals. A certain relation, a relation of non-logical or contingent necessitation, holds between F -ness and G -ness. This state of affairs may be symbolized as ‘ N ( F , G )’ (Armstrong 1983 , 85).

This framework promises to address the puzzle that was cited in the introduction to the present article. Maybe the difference between the uranium spheres generalization and the gold spheres generalization is that being uranium necessitates being less than one mile in diameter, but being gold does not. (Armstrong 1991 ; Dretske 1977 ).

But If necessity is always associated with laws of nature, then it is not clear why scientists cannot operate with a priori methods. The response by necessitarians is to appeal to Saul Kripke’s ( 1972 ) arguments meant to reveal the existence of certain aposteriori necessary truths in order to argue that the a posteriori nature of some laws does not prevent their lawhood from requiring a necessary connection between properties.

Chemists and other scientists are not typically familiar with Kripke’s category of aposteriori necessary truths. Briefly put, the fields of logic and mathematics are generally taken to deal with necessary truths. The fact that 2 + 2 = 4 is a necessary truth that does not depend on anybody making that discovery through experimentation. Aposteriori truths, on the other hand, are those that need to be discovered, such as the fact that grass is green. Grass did not have to be green, it has just turned out to be so and it has been an ‘after the facts’ discovery that it bears this color. Kripke’s cleverly crafted view, which has its origins in the field of logic and philosophy of language, seeks to combine these two classical approaches to kinds of truths and has been hugely influential in modern philosophy but not in science or science education.

Ellis’ new essentialism

The Australian philosopher Brian Ellis provides an interesting twist on the entire debate when he writes,

In the eighteenth century, secularized versions of the divine command theory were developed. Instead of thinking of God as the source of all power and order, some natural philosophers of the period began to speak of the “forces of nature” as the source of nature’s activity. But, in an important respect, the theory remained unchanged. The things in the world were just as passive as ever, only now they were being pushed or pulled around, willy-nilly, by forces. The philosopher David Hume, who was an atheist, took the further step of eliminating the forces, but he too retained the concept of nature as essentially passive. According to Hume, things do not move as they do because they are caused by anything to do so. They just do so move; and this is a brute fact about the world. Causes are illusions of causal powers in action, he argued, but really there are no such things as causal powers (Ellis 2002 , 2).

The view that things in nature are essentially passive, and obedient to nature's laws, was very widely shared by philosophers of all persuasions in the eighteenth century, as indeed it has been ever since. It was accepted not only by Descartes, Newton and Hume, but also by Locke and Kant, and therefore by the founding fathers of all of the major philosophical traditions of western Europe. Let us call this still-dominant world-view “passivism” (Ellis 2002 , 2).

For Ellis, a passivist believes that inanimate objects are only capable of acting as directed by forces of nature or by the laws of nature. These laws are regarded as being imposed from the outside. The forces are regarded as acting between the objects but the same objects are never considered to be the source of such activity.

By contrast, a new essentialist such as Ellis believes that objects act in the way that they do, not because they are directed by the laws of nature, but because that is the way they are intrinsically disposed to act. New essentialists think that inanimate objects are genuine causal agents which have the power or disposition to act.

Essentialists take the opposite view to this. They argue that things must behave in the sorts of ways they do not because the laws of nature require them to, but rather because this is how they are intrinsically disposed to behave. The causal powers, capacities and propensities of things, they say, are genuine properties, which they are bound to display in their various actions and interactions. (Ellis 2002 , 4).

Given the manner in which Ellis draws a contrast between passivism and essentialism it would seem to be a foregone conclusion that essentialism is the more organic and the more natural or plausible view to take. However, it would also seem that both passivists and the new essentialists are committed to thinking about laws of nature in a way that could never be settled by any form of experimentation or observation. The more scientifically inclined observer might therefore be equally comfortable in rejecting both of these supposedly opposed views that they are being asked to choose between.

Ellis concedes that the new essentialism is not even widely accepted by philosophers and adds that one must return to Aristotle to find a true defender of essentialism. He then immediately suggests that essentialism is precisely the sort of view that a modern realist should accept, given that, in Ellis’ view, modern science shows us that the world is not intrinsically inert.

The world, according to modern science, seems to be not innately passive, but fundamentally active and reactive. It is certainly not a mechanistic world of things having only the attributes of extension and impenetrability, as Descartes's and Locke's worlds were. Rather, it is a dynamic world consisting of more or less transient objects that are constantly interacting with each other, and whose identities appear to depend only on their roles in these causal processes (Ellis 2002 , 4).

Needless to say, one can reject a mechanistic view of the world while also embracing a dynamic world view, but still not accept any role for laws of nature, regardless of whether they be passive or active.

Returning to the opening question

Let me turn to the motivation for the present article. How is this philosophical work on the question of laws of nature of value to scientists and science educators, each of whom have somewhat different objectives? Should they familiarize themselves with at least some of the main arguments that so occupy the philosophers? What does it mean to claim that laws of nature may be necessary and somehow immanent in the world, rather than just a matter of epistemology? Is it of value for scientists and science educators to move beyond issues that can be experimentally resolved while stepping into a metaphysical world to which we may never have genuine access?

My response to these questions is that it does not serve science and science education to follow philosophers into this domain, however logically and carefully the philosophers go about conducting this kind of pursuit. This is not at all to deny the role and usefulness of philosophy of science in science education. Nor am I denying that metaphysical considerations may lie at the heart of scientific developments. I am certainly not proposing a return to positivistic notions that all that matters is grounding one’s views fully in experimental observations. I am making the more circumspect observation that philosophers as opposed to scientists and science educators, who I am lumping together for the sake of expediency, have somewhat different views about the nature and role of scientific laws. I am suggesting that these differences deserve greater scrutiny from those of us who advocate for a greater role of philosophy of science in the teaching of science.

Laws of nature from a more scientific perspective

In this and the following section I will examine what I take to be a scientific but non-philosophical perspective on laws of nature that one might encounter in a science textbook. According to scientists and science educators the discovery of laws of nature are among the first stages in the development of any scientific discipline. I take it that scientists and science educators consider laws of nature to be descriptive rather than explanatory and that the ‘heavy lifting’ of providing explanations is achieved by theories rather than by laws. In science one takes a more historical perspective on these matters, and a set of independently discovered scientific laws is seen as eventually leading to a scientific theory. In this respect scientific laws may be seen to play a less powerful role than scientific theories do. This is of course a reversal of the layperson’s view whereby scientific theories are regarded as being somewhat flimsy and lacking of any real power, except for the possibility that some such theories might eventually develop into becoming scientific laws.

There are many examples of laws and theories in science that show conclusively that the layperson’s view is altogether the wrong way round. What I am suggesting here, with some temerity, is that a somewhat analogous view is held in philosophy, in the sense that laws are considered to be of fundamental importance and of being explanatory.

Some examples of scientific laws

Consider for example the discovery of the laws of chemical combination. One of the first to be discovered, and usually attributed to Lavoisier, is the law of conservation of mass, namely the realization that in the course of chemical reactions matter is never created nor destroyed. In 1797 Joseph Proust discovered the law of constant composition according to which two or more elements that combine to form any particular compound will always do so in precisely the same ratio of masses. In the case of sodium chloride, for example, one gram of sodium always combines with 1.333 grams of chlorine, regardless of whether the source of the compound might be in rock salt, from sea water or anywhere else.

Thirdly, the law of multiple proportions dictates that if a particular element such as carbon combines with another element, say oxygen, to form more than one compound, the masses of the second element which combine with a fixed mass of the first one, constitutes a simple ratio according to their masses. Footnote 5 In the case of this example, involving the formation of carbon monoxide and carbon dioxide, the masses of oxygen that combine with one gram of carbon are 1.33 grams and 2.66 grams, respectively which represents a ratio of one to two between the masses of oxygen.

These three laws remained somewhat mysterious until the development of Dalton’s atomic theory which succeeded in unifying them, as well as explaining why all three laws are what they are. Footnote 6 The postulates of Dalton’s atomic theory are quite well known but worth repeating here in order to illustrate how they explain the three named laws of chemical composition as well as other facts about chemical reactions.

All matter is composed of extremely small particles called atoms.

Atoms of a given element are identical in size, mass, and other properties. Atoms of different elements differ in size, mass, and other properties.

Atoms cannot be subdivided, created, or destroyed.

Atoms of different elements can combine in simple whole number ratios to form chemical compounds.

In chemical reactions, atoms are combined, separated, or rearranged.

The law of conservation of mass can be explained by appeal to postulates 3 and 5. If atoms cannot be created or destroyed, it follows that the total mass of the products of any chemical reaction is equal to the total mass of the reactants. Proust’s law of constant composition is explained by postulate 2. Atoms of sodium and chlorine, for example, have different and fixed weights which are reflected in the relative weights of these elements which occur in macroscopic samples of the compound that they form. Thirdly, the law of multiple proportions is explained by appealing mainly to postulate 4.

I wish to highlight how different this view is from the way that philosophers of science, such as Hempel, came to belive that laws themselves are explanatory. A further point about the relationship between laws and theories, that is emphasized in science education, is that many laws are explained, as well as encompassed, within one particular theory. This fact which is also taken to imply the greater generality and more fundamental status of scientific theories as compared with laws.

The obvious consequence of this view is that laws by themselves do not provide explanations but only describe scientific states of affairs. In addition, scientific theories are seen to be explanatory, more general and more fundamental than laws.

Another classic example of a set of laws that eventually found their explanation in the form of a theory is that of the gas laws of Boyle, Charles and Avogadro which are unified within the framework of the kinetic theory of gases (Maxwell 1867 ).

In 1662 Boyle published a law that now bears his name, although it had been noticed by others. It states that the volume of an ideal gas is inversely proportional to the applied pressure. In 1687 Newton attempted an explanation for Boyle’s law but it is now considered to have been inadequate. The satisfactory explanation only became available when kinetic theory was developed over the next two centuries by Bernoulli, Clausius, Maxwell and Boltzmann.

In 1812 Amadeo Avogadro announced a gas law that states that the volume of an ideal gas is directly proportional to the number of moles of the gas. In the 1870s the French scientist Jacques Charles discovered that the volume of an ideal gas is directly proportional to its temperature. As in the case of Boyle’s law, attempts were made to explain these laws but it was not until the development of the kinetic theory that this feat was achieved. Simply put, the kinetic theory of gases provides a fundamental explanation and unification of what had previously been individual and seemingly disconnected relationships involving several properties of gases.

My third example concerns the periodic law and the associated periodic table of the chemical elements. In the 1860s a number of chemists noticed that if the elements were arranged in order of increasing atomic weight, the result was an approximate periodicity or recurrence in their chemical and physical properties. The periodic law was represented graphically in the form of periodic tables which have become one of the central guiding principles in the whole of chemistry and related sciences. However, it was not until the development of the old quantum theory, and Bohr’s application of it to chemical periodicity, that any underlying explanation became available. This explanation was placed on a more secure foundation with the advent of axiomatic quantum mechanics that was developed in the 1920s, some 60 years after the initial discovery of the periodic law (Scerri 2019 ).

Admittedly, the view that I have defended thus far is biased in favor of that of scientists on laws of nature. It would seem that some philosophers who invoke the necessity of laws of nature are taking a view that is somewhat akin to that of laypersons in elevating the role of laws of nature, which are regarded as being more fundamental that scientific theories (Chen 2021 ). But not all philosophers of science share this view. In the next section I will enlist the support of two prominent philosophers of science who deny the importance or even the very existence of scientific laws.

Philosophers of science opposed to the very notion of laws of nature

I now discuss two highly influential philosophers of science who have entirely rejected the very notion that laws of nature play any role in science, and the way in which philosophers should think of science. These authors consist of the late Ronald Giere and Bas Van Fraassen.

In an article titled “Science without laws of nature”, Giere begins by examining the recent historical origins of the notion of laws of nature (Giere 1999 ). He starts his account with the views of Descartes and Newton, both of whom believed that laws of nature were given by God. Consequently, these authors regarded laws to be true, universal and necessary. In addition, they regarded laws of nature to be independent of human observation and belief, since humans themselves were subject to God’s laws.

Giere points out a problem with Newton’s belief in the universality of his own laws of motion, or should one say God’s laws as discovered by Newton? Newton’s laws seemed to apply to terrestrial objects as well as comets and the planets in the solar system. However, he could not explain why the fixed stars did not appear to experience mutual attraction between themselves.

As Giere also points out, the rejection of God’s agency regarding laws of nature was questioned long before the time of Newton and Descartes by the likes of Roger Bacon, Robert Boyle and more famously by Galileo Galilei. Other skeptics who came after Newton included Laplace who did not need the hypothesis of a God, and Darwin whose rejection of a deity caused such a stir in England and continues to do so in many countries to this day. Footnote 7 But returning to philosophers, Giere considers that the complete divorce of so-called natural laws from God’s laws was carried out by Mill and later Bertrand Russell.

Giere’s own view of laws is nicely summarized in the following passage from his article,

The main issue for most of this century and the last, has been what to make of the supposed “necessity” of laws. Is it merely an artifact of our psychological makeup, as Hume argued; an objective feature of all rational thought, as Kant argued; or embedded in reality itself? My position, as outlined above, is that the whole notion of “law of nature” is very likely an artifact of circumstances obtaining in the seventeenth century. To understand contemporary science, we do not need a proper analysis of a law of nature, but a way of understanding the practice of science that does not simply presuppose that such a concept plays any important role whatsoever (Giere, 1999, 90).

Next, Giere considers some examples of what are typically referred to as laws by scientists, including Newton’s laws, Ohm’s law, the Second Law of Thermodynamics. His claim is that they are neither necessary, nor universal or even true. As for Newton’s laws, Giere points out that only in a universe that consists of just two bodies would Newton’s law of attraction be strictly true, given that the presence of other bodies invariably complicates the attraction between the two bodies in question. Moreover, the bodies in question would have to be perfectly spherical and would need to have no electrical charge for their attraction to be described exactly by the putative law of attraction.

Of course, it is possible to add provisos and clauses to the laws in order to disqualify such interferences but this would mean including an infinite list of such provisos. In addition, there are some provisos that could not possibly have been included by the discoverers of the alleged laws. For example, Newton would have needed to specify the absence of charges on his two perfectly spherical bodies, and yet electrical charge had not been sufficiently characterized or even imagined in Newton’s time.

Giere proceeds by turning the attention to Newton’s equations of motion rather than Newton’s laws. Thinking in terms of Newton’s laws imply a direct connection between the terms used in the law and the world. It also implies the presence of a universal quantifier of the form “for all massive objects…”. Consequently, the resulting statement is simply true or false.

If we focus on Newton's equations of motion however, the connection to the world becomes more abstract and indirect in the following way. We can associate a term m with the mass of any body and the terms v and t with velocity and time etc. The equations can then be used to consider a mechanical system such as a two-body system, that is only subject to gravitation. In other words, we now have an abstract system that can be termed a model.

To quote Giere,

By stipulation, the equations of motion describe the behavior of the model with perfect accuracy. We can say the equations are exemplified by the model or, if we wish, that the equations are even strictly true, even necessarily true for the model. For models, truth, even necessity, comes cheap. (original Italics) (Giere, 1999, 92).

Van Fraassen’s on laws

In his highly cited book, Laws and Symmetry , the leading constructive empiricist Bas Van Frassen begins his eighth chapter titled “What if there are no laws?” with a quotation from David Armstrong.

There is one truly eccentric view. This is the view that, although there are regularities in the world, there are no laws of nature (quoted in Van Fraassen 1989 , 183)

Van Frassen then sets about countering this view which he very understatedly claims to be “no longer being quite so eccentric” in the remainder of his book. Van Frassen then sets about countering this view which he very understatedly claims to be “no longer being quite so eccentric” in the remainder of his book.

In an interview with Robert Kuhn, Van Fraassen explains how laws were important in the 17th century both in theology and in science (Van Fraassen 1989 ). Footnote 8 However, although the theological connotation was gradually abandoned in the context of scientific laws, the term law itself continued to be used. He gives the example of the current usage of the terms Ohm’s law and Schrödinger’s equation and wonders why the latter is not also known as a law given that it is more fundamental. According to Van Fraassen the term law is used as an honorific epithet and inconsistently so.

Van Fraassen categorically rejects the notion that scientific laws represent necessary connections and points out the simple fact that scientists never consider their laws as having anything to do with necessity. He believes that laws carry the baggage of necessity which should be excised. When asked what has to be added to a genuine regularity to turn it into a law his response is “something like necessity”. For an empiricist such as Van Frassen things just happen and regularities suffice to provide explanations, predictions and manipulation of the world. If necessity is removed from putative laws what remains is models or theories. The only way to test necessity would be to examine a putative law in all possible circumstances, or in all possible worlds, which is of course impossible to do.

To conclude this section, I should stress that while I support the views of Giere and Van Frassen when it comes to their denial of the role of laws in scientific practice, I do not necessarily agree with their model-centric approach to understanding scientific theories.

Seifert on laws in chemistry

To return specifically to the field of chemistry, I now briefly consider the views of Seifert who has attempted to make a case for invariable and necessary nature of laws in chemistry. In a recent article titled “Does the periodic table reveal laws of nature?”, Seifert writes,

Where the periodic table has been disregarded though, is philosophy. This is surprising not just because of its important role in chemistry. The periodic table is often mentioned in textbooks, chemical articles and popular texts as a representation of the so-called ‘periodic law’. This term suggests that at least in chemical discourse the periodic table has a status that few classificatory schemes enjoy in science: it shows, to put it boldly, a law of nature (Seifert 2023 ).

According to the present author, the claim that philosophers of chemistry have neglected discussing the periodic table is patently false given the numerous publications on this topic (Scerri 2012 , 2021 , Scerri, Restrepo, 2018). Seifert proceeds to claim,

Interestingly, the periodic table involves numerous potential law-like statements. There are statements about elements and also about groups of them, like ‘All metals conduct electricity’ and ‘All noble gases are unreactive under standard conditions’. Each statement is encoded in the table as the periodic classification is based on the underlying electronic structure of elements. So one could argue that each represents a candidate law of nature (Seifert 2023 ).

One can readily agree that the periodic table embodies, and graphically represents, a grand generalization about the behavior of all the elements in terms of their approximate repetition. However, I doubt that any chemists would concur with the view that statements such as “all metals conduct electricity” can be said to constitute a law of nature, even if one accepts the commonplace understanding of scientific laws, since it is a well-known fact that not all metals do so. Whether or not either of the statements that Seifert cites are based on the underlying electronic structure of the elements in question, does not make such candidate laws any more law-like than they might be according to a classical view of the macroscopic properties of elements.

In other places Seifert has claimed that the manner in which any given element such as sodium reacts with another element, say chlorine, may also be regarded as a law of nature (Seifert 2023b ). However, such a proliferation in the number of laws runs the risk of making the very nature of laws redundant. Are we to believe that the reaction of every element with any other one constitutes a separate law? If so then one would currently have a total of [(118)(117)/2] or 6,903 distinct laws, just counting the reactions between any two elements. Footnote 9 The further question then arises as to whether one should consider the reaction between any given two elements under different conditions of temperature and/or pressure as constituting a further set of distinct laws. The clear danger of acquiescing to such a profusion of chemical laws would be to render very the very notion of laws as generalizations completely redundant.

Returning to Seifert, she further states,

In general, the idea that there is a certain way in which the world is compelled to behave (either by an agent or not) has persistently intrigued human civilisation. Second, there is a debate in metaphysics about whether things are the way they are in the universe by necessity or just by accident. If they are by necessity, is there something in the nature of things that compels them to behave as they do? Or do laws necessitate that things behave in a certain way? Some contemporary philosophers even argue that we might need both laws and the powers of things. Although Seifert does not go so far as to claim that chemical laws are indeed a matter of necessity in this article, it seems clear that she is wanting to apply the views of some necessitarian philosophers of science when it comes to the nature of chemical laws.

Conclusions

The fact that laws are regarded as leading to theories by scientists emphasizes the lesser role that laws play in the scheme of things. In metaphysics the situation is regarded in the opposite fashion. Laws are considered to be necessarily true, thus adding to their iron-clad validity and invariability. It appears that scientists accept the historical and developmental aspects of science whereby laws are a step towards greater understanding whereas metaphysicians seem to take a timeless view of the matter.

Cases involving accidental regularities are somewhat irrelevant to scientists since such false laws are soon rooted out and do not pose any serious threat to the growth of knowledge. As in the case of the flagpole and the shadow example, so beloved of causal theorists, metaphysicians love their imaginary spheres of gold and uranium weighing or not weighing 100,000 kilograms. These examples from folk philosophy are of no great interests to scientists and nor are all the elaborate schemes that seek to rule out the asymmetry of explanaon or the existence of accidental generalizations. Science deals with behavior observed over many, many, instances, rather than flagpoles, coins in my pocket or unusually large spheres of gold. For some philosophers like Van Fraassen and Giere there are no laws of nature. According to these authors, a better way to examine scientific practice is to focus on scientific models which are accepted from the outset as being neither true nor false, or to focus on equations which may or may not bear the name of a law.

The metaphysical view of laws of nature which regards bodies and particles as having essential properties, powers, dispositions etc. seem to deny the interconnectedness of all things. These views fail to recognize the underlying unity in the world of physical events which makes it that every action is influenced by the environment in which the action is taking place and by competing laws of nature, if one must speak in terms of any laws. The putative laws that are supposed to exist between particular objects such as masses in Newtonian gravity for example, thus represent abstractions which cannot be invariably ‘true’ in the way that metaphysicians suppose them to be.

Scientists use the word “law” as an honorary epithet and as a throwback to an age in which laws of nature had a religious connotation. But even when the religious connotation was abandoned the secular laws of nature were still regarded as being invariant. We propose, in agreement with the likes of Van Fraassen and Giere that this view represents a grand illusion.

And even when scientists continue to use the term law, such as in Boyle’s law, Snell’s law, Newton’s laws etc., they do not intend these relations to be endowed with invariable necessity. Many other scientific principles such as Pauli’s Exclusion Principle or the Schrödinger equation are similarly not known as laws for historically contingent reasons, even though they may have a wider range of application than the so-called laws of science.

For example, chemists have long abandoned using the term “periodic law”. In any case the repetition in the properties of elements that this law was once supposed to capture is highly irregular in that it involves sequences of 2, 8, 18 and 32 elements. Moreover, any such repetitions are approximate and frequently show anomalies, such that one is clearly not dealing with any form of necessity. Furthermore, the so-called periodic law appears to break down in the case of high atomic numbers. Footnote 10 However, these features do not render it an accidental generalization. Chemical periodicity represents a genuine regularity albeit with limitations, just as like so many putative laws of nature. Meanwhile a metaphysical view of laws of nature would not seem to lend itself to such capricious behavior on the part of some, if not all, scientific laws.

Finally, some recent research in physics and cosmology adds yet a further argument against the necessitarian view of laws. For some time now physicists have begun questioning whether the known laws of physics apply in all parts of the universe and whether they may have changed with the passage of time. This work has recently focused on the spectra of a class of celestial objects known as quasars. A close examination of the spectra of these objects is revealing a possible variation in the value of the fine structure constant, or the ratio which is equal to e 2 /hc, where e is the charge on the electron, h the Planck’s constant and c the velocity of light (Liu et al. 2021 ). If the constants of nature, or a combination of them in this case, do vary it implies that the laws of physics are also variable and therefore far from invariant as necessity would require.

To conclude, I urge philosophers of science education in particular to face up to the gulf between the scientific view that laws describe as opposed to the majority of philosophers who believe that they are explanatory and in some cases a matter of necessity. I offer one possible reason for this difference which was alluded to in earlier parts of this article. The scientific view would appear to be based on a more historical understanding of how laws are initially discovered and collected together, only to eventually be explained jointly by one underlying theory. I have given three examples of this kind of development, namely the laws of chemical combination, the individual gas laws and the periodic law, which were sometime later explained by Dalton’s theory, the kinetic theory of gases and quantum mechanics respectively.

Meanwhile, the philosophical views on scientific laws and laws of nature in general appear to be based on timeless considerations. This is perhaps why philosophers remain convinced that scientific laws are explanatory by themselves. It is because they have failed to take into account the historical or evolutionary development of science. One is reminded of the clash of styles between the titans of 20th century philosophy of science, namely Popper who sought a timeless logical approach, and Kuhn who relied heavily on the historical development of science for his own equally influential position.

For example, the Springer journal Science and Education which was founded in 1992 has this goal as its mission. https://en.wikipedia.org/wiki/Science_%26_Education#cite_note-1

I am grateful to a reviewer for drawing my attention to this point.

Further examples consist of the views of Skyrms who speaks of the resilience of genuine laws as compared with accidental generalizations, Skyrms ( 1980 ) and David Lewis’ talk of genuine laws having the ability to be integrated into the best systemizations of the facts in question.

David Lewis 1986 , Philosophical Papers , Volume II, New York: Oxford University Press.

This example of a law of chemical combination is somewhat ahistorical in that it was actually predicted by Dalton, rather than first being discovered, and then explained by his theory.

Nevertheless, matters could well have been the other way round and would not therefore detract from the force of my argument.

Paul Needham has disputed the commonly held notion that Dalton’s laws are in fact explanatory. (Needham 2004 ).

Interestingly, the debate is far more pronounced these days in the US than it is in the UK.

An interview of Bas van Fraassen conducted by Robert Maxwell Kuhn. https://www.youtube.com/watch?v=zFSEMap5AiY

If one considers the presence of n bodies, the number of two-body interactions is given by the formula [(n)(n – 1)]/2]. There are currently 118 elements that either exist naturally or have been produced synthetically, which leads to the figure of 6903 that is cited in the main text. However, the extreme instability of the superheavy elements precludes the notion of their reacting with any other element from the periodic table such as to reduce the value to somewhere in the region of about 4000.

Relativistic effects are known to modify the properties of elements having high atomic numbers, a field pioneered by Pyykko 1988 . For example, elements 104 and 105 or rutherfordium and dubnium respectively do not behave similarly to the elements placed above them in the periodic table (Scerri 2019 ).

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The Nature of Law

Lawyers are typically interested in the question: What is the law on a particular issue? This is always a local question and answers to it are bound to differ according to the specific jurisdiction in which they are asked. In contrast, philosophy of law is interested in the general question: What is Law? This general question about the nature of law presupposes that law is a unique social-political phenomenon, with more or less universal characteristics that can be discerned through philosophical analysis. General jurisprudence, as this philosophical inquiry about the nature of law is called, is meant to be universal. It assumes that law possesses certain features, and it possesses them by its very nature, or essence, as law, whenever and wherever it happens to exist. However, even if there are such universal characteristics of law—which is controversial, as we will later discuss—the reasons for a philosophical interest in elucidating them remain to be explained. First, there is the sheer intellectual interest in understanding such a complex social phenomenon which is, after all, one of the most intricate aspects of human culture. Law, however, is also a normative social practice: it purports to guide human behavior, giving rise to reasons for action. An attempt to explain this normative, reason-giving aspect of law is one of the main challenges of general jurisprudence. These two sources of interest in the nature of law are closely linked. Law is not the only normative domain in our culture; morality, religion, social conventions, etiquette, and so on, also guide human conduct in many ways which are similar to law. Therefore, part of what is involved in the understanding of the nature of law consists in an explanation of how law differs from these similar normative domains, how it interacts with them, and whether its intelligibility depends on other normative orders, like morality or social conventions.

Contemporary legal theories define these two main interests in the nature of law in the following terms. First, we need to understand the general conditions that would render any putative norm legally valid. Is it, for example, just a matter of the source of the norm, such as its enactment by a particular political institution, or is it also a matter of the norm’s content? This is the general question about the conditions of legal validity. Second, there is the interest in the normative aspect of law. This philosophical interest is twofold: A complete philosophical account of the normativity of law comprises both an explanatory and a justificatory task. The explanatory task consists of an attempt to explain how legal norms can give rise to reasons for action, and what kinds of reasons are involved. The task of justification concerns the question of whether people ought to comply—morally speaking or all things considered—with law’s demands. In other words, it is the attempt to explain the moral legitimacy of law and the subjects’ reasons for complying with it. A theory about the nature of law, as opposed to critical theories of law, concentrates on the first of these two questions. It purports to explain what the normativity of law actually consists in. Some contemporary legal philosophers, however, doubt that these two aspects of the normativity of law can be separated. (We will return to this later.)

Thus, elucidating the conditions of legal validity and explaining the normativity of law form the two main subjects of any general theory about the nature of law. In section 1, we will explain some of the main debates about these two issues. In section 2, we will discuss some of the methodological debates about the nature of general jurisprudence. In the course of the last few centuries, two main rival philosophical traditions have emerged about the nature of legality. The older one, dating back to late mediaeval Christian scholarship, is called the natural law tradition. Since the early 19th century, natural law theories have been fiercely challenged by the legal positivism tradition promulgated by such scholars as Jeremy Bentham and John Austin . The philosophical origins of legal positivism are much earlier, though, probably in the political philosophy of Thomas Hobbes . The main controversy between these two traditions concerns the conditions of legal validity. Basically, legal positivism asserts, and natural law denies, that the conditions of legal validity are purely a matter of social facts. In contrast to positivism, natural law claims that the conditions of legal validity are not exhausted by social facts; the moral content of the putative norms also bears on their legal validity. As the famous dictum, commonly attributed to Saint Augustine, has it: lex iniusta non est lex (unjust law is not law). (Augustine, De Libero Arbitrio, I, 5; see also Aquinas, Summa Theologica, I-II, Q. 96, Art. 4.)

1.1 The Conditions of Legal Validity

1.2 the normativity of law, 2.1.1 conceptual analysis views, 2.1.2 investigating law itself, 2.1.3 the metanormative inquiry view, 2.1.4 the prescriptive view, 2.1.5 constructive interpretation of legal practice, 2.2.1 preliminaries, 2.2.2 is legal theory evaluative in the relevant sense, other internet resources, related entries, 1. general jurisprudence.

The main insight of legal positivism, that the conditions of legal validity are determined by social facts, involves two separate claims which have been labeled The Social Thesis and The Separation Thesis. The Social Thesis asserts that law is, profoundly, a social phenomenon, and that the conditions of legal validity consist of social—that is, non-normative—facts. Early legal positivists followed Hobbes’ insight that the law is, essentially, an instrument of political sovereignty, and they maintained that the basic source of legal validity resides in the facts constituting political sovereignty. Law, they thought, is basically the command of the sovereign. Later legal positivists have modified this view, maintaining that social rules, and not the facts about sovereignty, constitute the grounds of law. Most contemporary legal positivists share the view that there are rules of recognition, namely, social rules or conventions which determine certain facts or events that provide the ways for the creation, modification, and annulment of legal standards. These facts, such as an act of legislation or a judicial decision, are the sources of law conventionally identified as such in each and every modern legal system. One way of understanding the legal positivist position here is to see it as a form of reduction: legal positivism maintains, essentially, that legal validity is reducible to facts of a non-normative type, that is, facts about people’s conduct, beliefs and attitudes.

Natural lawyers deny this insight, insisting that a putative norm cannot become legally valid unless it passes a certain threshold of morality. Positive law must conform in its content to some basic precepts of natural law, that is, universal morality, in order to become law in the first place. In other words, natural lawyers maintain that the moral content or merit of norms, and not just their social origins, also form part of the conditions of legal validity. And again, it is possible to view this position as a non-reductive conception of law, maintaining that legal validity cannot be reduced to non-normative facts. See the entry on natural law theories .

The Separation Thesis is an important negative implication of the Social Thesis, maintaining that there is a conceptual separation between law and morality, that is, between what the law is, and what the law ought to be. The Separation Thesis, however, has often been overstated. It is sometimes thought that natural law asserts, and legal positivism denies, that the law is, by necessity, morally good or that the law must have some minimal moral content. The Social Thesis certainly does not entail the falsehood of the assumption that there is something necessarily good in the law. Legal positivism can accept the claim that law is, by its very nature or its essential functions in society, something good that deserves our moral appreciation. Nor is legal positivism forced to deny the plausible claim that wherever law exists, it would have to have a great many prescriptions which coincide with morality. There is probably a considerable overlap, and perhaps necessarily so, between the actual content of law and morality. Once again, the Separation Thesis, properly understood, pertains only to the conditions of legal validity. It asserts that the conditions of legal validity do not depend on the moral merits of the norms in question. What the law is cannot depend on what it ought to be in the relevant circumstances.

Many contemporary legal positivists would not subscribe to this formulation of the Separation Thesis. A contemporary school of thought, called inclusive legal positivism , endorses the Social Thesis, namely, that the basic conditions of legal validity derive from social facts, such as social rules or conventions which happen to prevail in a given community. But, inclusive legal positivists maintain, legal validity is sometimes a matter of the moral content of the norms, depending on the particular conventions that happen to prevail in any given community. The social conventions on the basis of which we identify the law may, but need not, contain reference to moral content as a condition of legality (see, for example, Waluchow 1994).

The natural law tradition has undergone a considerable refinement in the 20th century, mainly because its classical, popular version faced an obvious objection about its core insight: it is just difficult to maintain that morally bad law is not law. The idea that law must pass, as it were, a kind of moral filter in order to count as law strikes most jurists as incompatible with the legal world as we know it. Therefore, contemporary natural lawyers have suggested different and more subtle interpretations of the main tenets of natural law. For example, John Finnis (1980) views natural law (in its Thomist version) not as a constraint on the legal validity of positive laws, but mainly as an elucidation of an ideal of law in its fullest, or highest sense, concentrating on the ways in which law necessarily promotes the common good. As we have noted earlier, however, it is not clear that such a view about the necessary moral content of law is at odds with the main tenets of legal positivism. To the extent that there is a debate here, it is a metaphysical one about what is essential or necessary to law, and about whether the essential features of law must be elucidated in teleological terms or not. Legal positivists do not tend to seek deep teleological accounts of law, along the lines articulated by Finnis, but whether they need to deny such metaphysical projects is far from clear.

The idea that the conditions of legal validity are at least partly a matter of the moral content or merits of norms is articulated in a sophisticated manner by Ronald Dworkin’s legal theory. Dworkin is not a classical natural lawyer, however, and he does not maintain that morally acceptable content is a precondition of a norm’s legality. His core idea is that the very distinction between facts and values in the legal domain, between what the law is and what it ought to be, is much more blurred than legal positivism would have it: Determining what the law is in particular cases inevitably depends on moral-political considerations about what it ought to be. Evaluative judgments, about the content law ought to have or what it ought to prescribe, partly determine what the law actually is.

Dworkin’s legal theory is not based on a general repudiation of the classical fact-value distinction, as much as it is based on a certain conception of legal reasoning. This conception went through two main stages. In the 1970s Dworkin (1977) argued that the falsehood of legal positivism resides in the fact that it is incapable of accounting for the important role that legal principles play in the law. Legal positivism envisaged, Dworkin claimed, that the law consists of rules only. However, this is a serious mistake, since in addition to rules, law is partly determined by legal principles. The distinction between rules and principles is a logical one. Rules, Dworkin maintained, apply in an “all or nothing fashion.” If the rule applies to the circumstances, it determines a particular legal outcome. If it does not apply, it is simply irrelevant to the outcome. On the other hand, principles do not determine an outcome even if they clearly apply to the pertinent circumstances. Principles provide judges with a legal reason to decide the case one way or the other, and hence they only have a dimension of weight. That is, the reasons provided by the principle may be relatively strong, or weak, but they are never “absolute.” Such reasons, by themselves, cannot determine an outcome, as rules do.

The most interesting, and from a positivist perspective, most problematic, aspect of legal principles, however, consists in their moral dimension. According to Dworkin’s theory, unlike legal rules, which may or may not have something to do with morality, principles are essentially moral in their content. It is, in fact, partly a moral consideration that determines whether a legal principle exists or not. Why is that? Because a legal principle exists, according to Dworkin, if the principle follows from the best moral and political interpretation of past judicial and legislative decisions in the relevant domain. In other words, legal principles occupy an intermediary space between legal rules and moral principles. Legal rules are posited by recognized institutions and their validity derives from their enacted source. Moral principles are what they are due to their content, and their validity is purely content dependent. Legal principles, on the other hand, gain their validity from a combination of source-based and content-based considerations. As Dworkin put it in the most general terms: “According to law as integrity, propositions of law are true if they figure in or follow from the principles of justice, fairness, and procedural due process that provide the best constructive interpretation of the community’s legal practice” (Dworkin 1986, 225). The validity of a legal principle then, derives, from a combination of facts and moral considerations. The facts concern the past legal decisions which have taken place in the relevant domain, and the considerations of morals and politics concern the ways in which those past decisions can best be accounted for by the correct moral principles.

Needless to say, if such an account of legal principles is correct, the Separation Thesis can no longer be maintained. But many legal philosophers doubt that there are legal principles of the kind Dworkin envisaged. There is an alternative, more natural way to account for the distinction between rules and principles in the law: the relevant difference concerns the level of generality, or vagueness, of the norm-act prescribed by the pertinent legal norm. Legal norms can be more or less general, or vague, in their definition of the norm-act prescribed by the rule, and the more general or vague they are, the more they tend to have those quasi-logical features Dworkin attributes to principles. More importantly, notice that if you make the legal validity of norms, such as legal principles, depend on moral argument, you allow for the possibility that an entire legal community may get its laws wrong. Any moral mistake in the reasoning leading to a legal principle might render the conclusion about the principle unsound, and the principle itself thus not legally valid. Since there is nothing to prevent judges and other legal actors from making moral mistakes, there is nothing to prevent a result whereby an entire legal community, and for a long time, gets its laws wrong (Marmor 2011, chapter 4). Perhaps Dworkin would have not found this problematic, but others might; the idea that an entire legal community can be systematically mistaken about its own laws might strike legal theorists as deeply problematic.

In the 1980s Dworkin radicalized his views about these issues, striving to ground his anti-positivist legal theory on a general theory of interpretation, and emphasizing law’s profound interpretative nature. Despite the fact that Dworkin’s interpretative theory of law is extremely sophisticated and complex, the essence of his argument from interpretation can be summarized in a rather simple way. The main argument consists of two main premises. The first thesis maintains that determining what the law requires in each and every particular case necessarily involves interpretative reasoning. Any statement of the form “According to the law in $S$, $x$ has a right/duty etc., to $y$” is a conclusion of some interpretation or other. Now, according to the second premise, interpretation always involves evaluative considerations. More precisely, perhaps, interpretation is neither purely a matter of determining facts, nor is it a matter of evaluative judgment per se , but an inseparable mixture of both. Clearly enough, one who accepts both these theses must conclude that the Separation Thesis is fundamentally flawed. If Dworkin is correct about both theses, it surely follows that determining what the law requires always involves evaluative considerations.

Notably, the first premise of Dworkin’s general argument is highly contestable. Some legal philosophers have argued that legal reasoning is not as thoroughly interpretative as Dworkin assumes. Interpretation, according to this view, long maintained by H.L.A. Hart (1961, chapter 7), is an exception to the standard understanding of language and communication, rendered necessary only when the law is, for some reason, unclear. However, in most standard instances, the law can simply be understood, and applied, without the mediation of interpretation (Marmor 2011, chapter 6).

Dworkin’s legal theory shares certain insights with the inclusive version of legal positivism. Note, however, that although both Dworkin and inclusive legal positivists share the view that morality and legal validity are closely related, they differ on the grounds of this relationship. Dworkin maintains that the dependence of legal validity on moral considerations is an essential feature of law that derives from law’s profoundly interpretative nature. Inclusive positivism, on the other hand, maintains that such a dependence of legal validity on moral considerations is a contingent matter; it does not derive from the nature of law or of legal reasoning as such. Inclusive positivists accept the Social Thesis; they claim that moral considerations affect legal validity only in those cases where this is dictated by the social rules or conventions which happen to prevail in a given legal system. The relevance of morality is determined in any given legal system by the contingent content of that society’s conventions. As opposed to both these views, traditional, or as it is now called, exclusive legal positivism maintains that a norm’s legal validity is never dependent on its moral content. Legal validity, according to this view, is entirely dependent on the conventionally recognized factual sources of law.

It may be worth noting that those legal theories maintaining that legal validity partly depends on moral considerations must also share a certain view about the nature of morality. Namely, they must hold an objective stance with respect to the nature of moral values. Otherwise, if moral values are not objective and legality depends on morality, legality would also be rendered subjective, posing serious problems for the question of how to identify what the law is. Some legal theories, however, do insist on the subjectivity of moral judgements, thus embracing the skeptical conclusions that follow about the nature of law. According to these skeptical theories, law is, indeed, profoundly dependent on morality, but, as these theorists assume that morality is entirely subjective, it only demonstrates how the law is also profoundly subjective, always up for grabs, so to speak. This skeptical approach, fashionable in so-called post-modernist literature, crucially depends on a subjectivist theory of values, which is rarely articulated in this literature in any sophisticated way.

Throughout human history the law has been known as a coercive institution, enforcing its practical demands on its subjects by means of threats and violence. This conspicuous feature of law made it very tempting for some philosophers to assume that the normativity of law resides in its coercive aspect. Even within the legal positivist tradition, however, the coercive aspect of the law has given rise to fierce controversies. Early legal positivists, such as Bentham and Austin, maintained that coercion is an essential feature of law, distinguishing it from other normative domains. Legal positivists in the 20th century have tended to deny this, claiming that coercion is neither essential to law, nor, actually, pivotal to the fulfillment of its functions in society. Before we unpack the various issues involved in this controversy, it might be worth noting that the debate about law’s coercive aspect is one good example of debates in jurisprudence that focus on what might be an essential or a necessary feature of law, regardless of its particular manifestations in this or that legal system. How to understand these claims about the essence of law, and the question of whether these claims are about metaphysics or something else, perhaps about morality, will be discussed in section 2.1.

Returning to law’s coercive aspect, there are several issues entangled here, and we should carefully separate them. John Austin famously maintained that each and every legal norm, as such, must comprise a threat backed by sanction. This involves at least two separate claims: In one sense, it can be understood as a thesis about the concept of law, maintaining that what we call “law” can only be those norms which are backed by sanctions of the political sovereign. In a second, though not less problematic sense, the intimate connection between the law and the threat of sanctions is a thesis about the normativity of law. It is a reductionist thesis about law’s normative character, maintaining that the normativity of law consists in the subjects’ ability to predict the chances of incurring punishment or evil and their presumed desire to avoid it.

In addition to this particular controversy, there is the further question, concerning the relative importance of sanctions for the ability of law to fulfill its social functions. Hans Kelsen, for instance, maintained that the monopolization of violence in society, and the law’s ability to impose its demands by violent means, is the most important of law’s functions in society. Twentieth century legal positivists, like H.L.A. Hart and Joseph Raz, deny this, maintaining that the coercive aspect of law is much more marginal than their predecessors assumed. Once again, the controversy here is actually twofold: is coercion essential to what the law does? And even if it is not deemed essential, how important it is, compared with the other functions law fulfills in our lives?

Austin’s reductionist account of the normativity of law, maintaining that the normative aspect of law simply consists in the subjects’ desire to avoid sanctions, was discussed extensively, and fiercely criticized, by H.L.A. Hart. Hart’s fundamental objection to Austin’s reductionist account of law’s normativity is, on his own account, “that the predictive interpretation obscures the fact that, where rules exist, deviations from them are not merely grounds for prediction that hostile reactions will follow…. but are also deemed to be a reason or justification for such reaction and for applying the sanctions” (Hart 1961, 82). This emphasis on the reason-giving function of rules is surely correct, but perhaps not enough. Supporters of the predictive account could claim that it only begs the further question of why people should regard the rules of law as reasons or justifications for actions. If it is, for example, only because the law happens to be an efficient sanction-provider, then the predictive model of the normativity of law may turn out to be correct after all. In other words, Hart’s fundamental objection to the predictive model is actually a result of his vision about the main functions of law in society, holding, contra Austin and Kelsen, that those functions are not exclusively related to the ability of the law to impose sanctions.

It is arguable, however, that law’s functions in our culture are more closely related to its coercive aspect than Hart seems to have assumed. Contemporary use of “game theory” in the law tends to show that the rationale of a great variety of legal arrangements can be best explained by the function of law in solving problems of opportunism, like the so called Prisoner’s Dilemma situations. In these cases, the law’s main role is, indeed, one of providing coercive incentives for the mutual benefit of all parties concerned. Be this as it may, we should probably refrain from endorsing Austin’s or Kelsen’s position that law’s only function in society is essentially tied to its coercive aspects. Solving recurrent and multiple coordination problems, setting standards for desirable behavior, proclaiming symbolic expressions of communal values, resolving disputes about facts, and such, are important functions which the law serves in our society, and those have very little to do with law’s coercive aspect and its sanction-imposing functions.

The extent to which law can actually guide behavior by providing its subjects with reasons for action has been questioned by a very influential group of legal scholars in the first half of the 20 th century, called the Legal Realism school. American Legal Realists claimed that our ability to predict the outcomes of legal cases on the basis of the rules of law is rather limited. In the more difficult cases which tend to be adjudicated in the appellate courts, legal rules, by themselves, are radically indeterminate as to the outcome of the cases. The Legal Realists thought that lawyers who are interested in the predictive question of what the courts will actually decide in difficult cases need to engage in sociological and psychological research, striving to develop theoretical tools that would enable us to predict legal outcomes. Thus Legal Realism was mainly an attempt to introduce the social sciences into the domain of jurisprudence for predictive purposes. To what extent this scientific project succeeded is a matter of controversy. Be this as it may, Legal Realism paid very little attention to the question of the normativity of law, that is, to the question of how the law does guide behavior in those cases in which it seems to be determinate enough.

A much more promising approach to the normativity of law is found in Joseph Raz’s theory of authority, which also shows how such a theory about the normativity of law entails important conclusions with respect to the conditions of legal validity (Raz 1994). The basic insight of Raz’s argument is that the law is an authoritative social institution. The law, Raz claims, is a de facto authority. However, it is also essential to law that it must be held to claim legitimate authority. Any particular legal system may fail, of course, in its fulfillment of this claim. But law is the kind of institution which necessarily claims to be a legitimate authority.

According to Raz, the essential role of authorities in our practical reasoning is to mediate between the putative subjects of the authority and the right reasons which apply to them in the relevant circumstances. An authority is legitimate if and only if it helps its putative subjects to comply better with the right reasons relevant to their actions—i.e., if they are more likely to act in compliance with these reasons by following the authoritative resolution than they would be if they tried to figure out and act on the reasons directly (without the mediating resolution). For example, there may be many reasons that bear on the question of how fast to drive on a particular road—the amount of pedestrian traffic, impending turns in the road, etc.—but drivers may comply better with the balance of those reasons by following the legal speed limit than if they tried to figure out all the trade-offs in the moment. The legitimacy of the legal speed limit would thus be derived from the way in which it aids people in acting in better compliance with the balance of the right reasons.

Now, it follows that for something to be able to claim legitimate authority, it must be of the kind of thing capable of claiming it, namely, capable of fulfilling such a mediating role. What kinds of things can claim legitimate authority? There are at least two such features necessary for authority-capacity: First, for something to be able to claim legitimate authority, it must be the case that its directives are identifiable as authoritative directives, without the necessity of relying on those same reasons which the authoritative directive replaces. If this condition is not met, namely, if it is impossible to identify the authoritative directive as such without relying on those same reasons the authority was meant to rely on, then the authority could not fulfill its essential, mediating role. In short, it could not make the practical difference it is there to make. Note that this argument does not concern the efficacy of authorities. The point is not that unless authoritative directives can be recognized as such, authorities could not function effectively. The argument is based on the rationale of authorities within our practical reasoning. Authorities are there to make a practical difference, and they could not make such a difference unless the authority’s directive can be recognized as such without recourse to the reasons it is there to decide upon. In other words, it is pointless to have an authoritative directive if, in order to discover what the directive is, you have to engage in the same reasoning that reliance on the directive is supposed to replace. Secondly, for something to be able to claim legitimate authority, it must be capable of forming an opinion on how its subjects ought to behave, distinct from the subjects’ own reasoning about their reasons for action; authority requires some authorship.

Raz’s conception of legal authority provides very strong support for exclusive legal positivism because it requires that the law, qua an authoritative resolution, be identifiable on its own terms, that is, without having to rely on those same considerations that the law is there to resolve. Therefore a norm is legally valid (i.e., authoritative) only if its validity does not derive from moral or other evaluative considerations that the law is intended to replace. Notably, Raz’s theory challenges both Dworkin’s anti-positivist legal theory, and the inclusive version of legal positivism. This challenge, and the controversies it gave rise to, form one of the main topics discussed in contemporary general jurisprudence.

Explaining the rationale of legal authority, however, is not the only component of a theory about the normativity of law. If we hold the legal positivist thesis that law is essentially founded on social conventions, another important question arises here: how can a conventional practice give rise to reasons for action and, in particular, to obligations? Some legal philosophers claimed that conventional rules cannot, by themselves, give rise to obligations. As Leslie Green observed, Hart’s “view that the fundamental rules [of recognition] are ‘mere conventions’ continues to sit uneasily with any notion of obligation,” and this Green finds troubling, because the rules of recognition point to the “sources that judges are legally bound to apply” (Green 1996, 1697). The debate here is partly about the conventional nature of the rules of recognition, and partly about the ways in which conventions can figure in our reasons for action. According to one influential theory, inspired by David Lewis (1969) conventional rules emerge as solutions to large-scale and recurrent coordination problems. If the rules of recognition are, indeed, of such a coordination kind, it is relatively easy to explain how they may give rise to obligations. Coordination conventions would be obligatory if the norm subjects have an obligation to solve the coordination problem which initially gave rise to the emergence of the relevant convention. It is doubtful, however, that the conventions at the foundations of law are of a coordinative kind. In certain respects the law may be more like a structured game, or an artistic genre, which are actually constituted by social conventions. Such constitutive conventions are not explicable as solutions to some pre-existing recurrent coordination problem. The conventional rules constituting the game of chess, for example, are not there to solve a coordination problem between potential players. Antecedent to the game of chess, there was no particular coordination problem to solve. The conventional rules of chess constitute the game itself as a kind of social activity people would find worthwhile engaging in. The constitutive conventions partly constitute the values inherent in the emergent social practice. Such values, however, are only there for those who care to see them. Constitutive conventions, by themselves, cannot ground an obligation to engage in the practice they constitute.

From a moral point of view, the rules of recognition, by themselves, cannot be regarded as sources of obligation to follow the law. Whether judges, or anybody else, should or should not respect the rules of recognition of a legal system, is ultimately a moral issue, that can only be resolved by moral arguments (concerning the age old issue of political obligation). And this is more generally so: the existence of a social practice, in itself, does not provide anyone with an obligation to engage in the practice. The rules of recognition only define what the practice is, and they can say nothing on the question of whether one should or should not engage in it. But of course, once one does engage in the practice, playing the role of judge or some other legal official, as it were, there are legal obligations defined by the rules of the game. In other words, there is nothing special in the idea of a legal obligation to follow the rules of recognition. The referee in a soccer game is equally obliged to follow the rules of his game, and the fact that the game is conventional poses no difficulty from this, let us say, “internal-player’s” perspective. But again, the constitutive rules of soccer cannot settle for anyone the question of whether they should play soccer or not. Similarly, the rules of recognition cannot settle for the judge, or anyone else for that matter, whether they should play by the rules of law, or not. They only tell us what the law is . Unlike chess or soccer, however, the law may well be a kind of game that people have an obligation to play, as it were. But if there is such an obligation, it must emerge from external, moral, considerations, that is, from a general moral obligation to obey the law. The complex question of whether there is such a general obligation to obey the law, and whether it depends on certain features of the relevant legal system, is extensively discussed in the literature on political obligation. A complete theory about the normativity of law must encompass these moral issues as well. (See the entries on political obligation and legal obligation .)

More recently, however, a number of philosophers have started to question the idea that there is something unique to the normativity of law, inviting us to see how laws might affect our reasons for action in ways that are not closely tied to the nature of law (Greenberg 2014, Enoch 2011, Marmor 2016 [2018]). Some of these views (e.g., Enoch, Marmor) purport to show that there are different ways in which the existence of various norms bear on people’s reasons for action, present in law as elsewhere, without denying that the law often makes a difference; these views only deny that there is something unique to the way law changes its subjects’ reasons for action, compared with other types normative demands. Others challenge law’s normativity from an opposite angle (Greenberg 2014, Hershovitz 2015), arguing that the only aspect of law that is of normative significance is the moral difference that it makes to people’s reasons for action.

In the last two decades of the 20th century, new challenges to general jurisprudence, and particularly to legal positivism, have taken an interesting methodological turn. This methodological turn gained momentum with the publication of Dworkin’s Law’s Empire (1986), arguing that not only the law, as a social practice, is a profoundly interpretative (and thus partly, but necessarily, evaluative in nature), but that any theory about the nature of law is also interpretative in a similar way, and thus, equally evaluative. Many of those who do not necessarily share Dworkin’s views about the interpretative nature of legal practice, or the specifics of his theory of interpretation, have joined him in this methodological skepticism about the traditional aims of general jurisprudence, that is, about the possibility of developing a theory about that nature of law that would have general application and remain morally neutral. These, and other resultant methodological challenges to traditional general jurisprudence are taken up in the next section.

It would be fair to say, however, that in the last few years, many legal philosophers have expressed a growing frustration with these traditional debates about the nature of law, calling for legal philosophy to move beyond the Hart-Dworkin debates and explore new avenues of research. Some of these new critics are content to abandon the project altogether, declaring the death of general jurisprudence (Hershovitz 2015). Others, however, are engaged in exploring new challenges. One emerging area of research concerns the artifact nature of law, aiming to learn something about the nature of law from the fact that law seems to be an artifact, created and sustained by humans for particular purposes. (See, for example, Burazin et al. eds., 2018.) Others explore connections between law’s features as artifact and fictionalism, suggesting that their underlying logic and metaphysics share a great deal in common (Marmor 2018). Another new and potentially fruitful area of research focuses on applications of philosophy of language to law, brining new developments in philosophy of language, particularly in pragmatics, to bear on questions of legal interpretation and understanding of legal content (Asgeirsson forthcoming, Asgeirsson 2015, Marmor 2014). This linguistic direction is not uncontroversial, however; some legal philosophers express skepticism about the idea that legal content is determined by linguistic factors (Greenberg 2011) and there is an ongoing debate about these issues. Finally, there also seems to be a growing interest in recent developments in metaphysics that might bear on a theory about the nature of law, and even debates about meta-metaphysics are beginning to emerge in the context of general jurisprudence, purporting to show that ways in which we think about the tasks of metaphysical inquiry may bear on ways we think about the law (Rosen 2010). For example, if the main task of metaphysics is to determine what really exists in the world, irrespective of what we think about it or ways in which we represent the world, metaphysics may not have much to say about the nature of law or, perhaps, it may indicate that only a scientific approach to jurisprudence can yield metaphysically respectable results. If, however, the task of metaphysical inquiry is also to figure out what is more foundational than something else, giving us a hierarchical structure of the world, where some things ground others, then metaphysics might be a very fruitful framework to work with in trying to elucidate the foundations of legality and legal phenomena more generally. This potential metaphysical interest in jurisprudence is at its infancy presently, and time will tell if this new approach gets us interesting results.

2. The Methodology of Jurisprudence

When it comes to the methodology of jurisprudence, we find two main issues. While one is not directly concerned with normativity, the second is. The first asks about the aims and success criteria for philosophical theories about the nature of law:

What is the target that first-order theories of law aim to capture, and when do they succeed in doing so?

The second asks about the role of evaluation in jurisprudential methodology:

Are first-order legal theories inherently or necessarily evaluative or can they be purely descriptive?

Each of these questions will be discussed in turn.

2.1 The Target of a Theory of Law

The first important class of methodological questions in jurisprudence concerns the target of first-order theories of law—that is, what phenomenon such theories aim to provide an account of. In taking a stand on what the proper target of a first-order legal theory is, one incurs a number of other methodological commitments. These include adopting a view about when such theories are successful, taking a stand on what sort of data such theories aim to systematize and explain, and determining what sorts of arguments are legitimately used in deciding between one of these theories and its competitors.

There are five main families of views on this question. One view takes jurisprudence to be a form of conceptual analysis, which is to say that theories of law aim to provide an account of some concept of law. This approach is often associated with Hart’s influential work, The Concept of Law (1994). A second sort of view adopts a more skeptical stance towards the methodology of conceptual analysis and takes theories of law to be in the business of offering a reductive explanation of law itself, not some concept of it. Another recent view sees general jurisprudence as just another branch of metanormative inquiry, which renders it continuous with other philosophical fields like metaethics. Fourth, the prescriptive view takes it that the aim of a theory of law is to specify the notion of law that it would be most desirable for us to adopt. A fifth kind of view, associated with Dworkin’s work, takes it that legal theories are in the business of offering a constructive interpretation of legal practice. In what follows, each of these five views, as well as some of the main issues they face, will be discussed in more depth.

On conceptual analysis views, theories of law aim to capture the concept of law and they succeed to the extent that they provide a coherent account of the relevant data about that concept and related concepts. In particular, the data to be systematized are taken to be people’s intuitions involving some shared concept of law (or cognate concepts like legal validity or legal obligation). In their simplest form, such intuitions can be thought of as judgments about whether the relevant concept does or does not apply to particular cases. Accordingly, on this sort of view, a theory of law aims to provide an account of the conditions under which the target concept of law (or one of its cognates) applies.

What’s more, such a theory can be arrived at by employing the method of conceptual analysis, undertaken from the proverbial armchair. The idea is that the theorist starts with a putative set of criteria for the correct application of the target concept, and then she tests this account against her intuitions about that concept. If the account entails that the concept applies to particular cases that it intuitively does not apply to, then this provides reason to reject or revise the account in question. By contrast, if the account entails that the target concept applies to certain cases and this is the intuitively correct result, this tends to provide affirmative support for the account. The account successfully captures the target concept to the extent that it yields intuitively correct results about particular cases, and does so in an explanatorily satisfying way (as opposed to an ad hoc manner). (For a more in depth discussion of the methodology of conceptual analysis as applied to the concept of law, see Shapiro 2011, 16–22.)

Jurisprudence has been influenced by two main ways of understanding the relevant intuitions (or data) that theories of law aim to systematize. This, in turn, is due to the fact that one might understand concepts themselves, and our intuitions about them, in two different ways. Accordingly, we find two main varieties of the conceptual analysis view of methodology.

The first understanding of concepts takes concept possession to be mainly a matter of linguistic competence. That is, to possess the concept of law is to know when the word “law” as used in its juridical sense (not the scientific sense) applies. Thus, intuitions about the concept of law are to be understood as linguistic intuitions about how to use the word “law.” On the present view, then, conceptual analysis is a mode of linguistic analysis. This sort of view was famously discussed in chapters 1 and 2 of Dworkin’s Law’s Empire (Dworkin 1986, 32, 43–46). It arguably traces back to the kind of ordinary language philosophy associated with J.L. Austin and Gilbert Ryle (Marmor 2013, 210–212).

However, this understanding of concept possession has drawbacks. Perhaps the biggest source of concern in the present context is that this sort of view fuels a version of Dworkin’s “semantic sting” argument (Dworkin 1986, 43–46). The argument may be summarized as follows. Suppose legal theories aim to capture the concept of law and that concept possession just is a matter of knowing when the word “law” applies. If so, the argument runs, legal theories cannot explain disagreement about the grounds of law, that is, about the conditions of legal validity. After all, if legal theories are in this way semantic in nature, then disagreement about what the grounds of law are must boil down to disagreement about when the word “law” applies—at least assuming the parties to the disagreement are not merely talking past one another. But now a dilemma arises. Either legal practitioners possess the same concept of law or they do not. If they do possess the same concept, then it seems they cannot fail to agree about what it takes for a norm to count as law. After all, they all know when the word expressing their shared concept of law applies. But this is implausible, since legal practice in fact is rife with disagreement about what the grounds of law are (and thus, what counts as law or as legal). On the other hand, if legal practitioners do not share the same concept of law, then their disagreement about what the grounds of law are must just be due to the fact that they are talking past one another. But that, too, is implausible. Legal practice, as Dworkin puts it, is not “a grotesque joke” (Dworkin 1986, 44). Accordingly, there must be something wrong with construing legal theories as mere semantic accounts of when the word “law” applies.

If, in light of this argument, we are to abandon the idea that first-order legal theories are semantic theories, there are two obvious ways to proceed. First, one might simply abandon the idea that legal theories are exercises in conceptual analysis. This was Dworkin’s preferred response, though, as we’ll see, one can reject conceptual analysis without adopting Dworkin’s own favored methodology. (More on that in sub-section 2.1.2.) Second, if one wants to still say that legal theories are in the business of analyzing the concept of law, then the obvious response to the semantic sting argument is to deny that concept possession just is a matter of knowing how the word “law” in its juridical sense is to be applied. This suggests a second, richer form of conceptual analysis that legal theorists might be engaged in.

The basic idea behind the richer view is to take it that concept possession, rather than merely being a matter of knowing when words apply, involves something meatier: namely, the possession of a wide range of substantive beliefs or intuitions about the concept, its essential features and its proper application. The assumption is that the intuitions one is disposed to have in virtue of possessing the concept of law will be fertile enough to constitute a particular substantive conception of what the law is and how it functions. The aim of a theory of law, then, would be to systematize these pre-theoretic judgments about the concept of law in order to provide an account of some substantive conception of law. (This sort of richer view of concept possession is discussed, e.g., in Raz 2004, 4–7; Stravopoulos 2012, 78–79; Shapiro 2011, 16–22. It is perhaps also the sort of view presupposed by Hart.) On this view, legal disagreement remains possible because while practitioners might all be using the same concept of law, the richness of the concept allows that they nonetheless might not possess the concept determinately enough, or understand its application conditions thoroughly enough, to guarantee consensus on theoretical questions about what the grounds of law actually are.

However, also this richer understanding of concept possession, and the meatier picture of conceptual analysis it gives rise to, has been widely criticized (Marmor 2013, 215–217; Raz 2004, 10; Leiter 2007, 177–79). One question that immediately arises is which concept of law, exactly, constitutes the proper target of a theory of law. Is it the concept of law that is possessed by the legal practitioners in a particular jurisdiction? Or is it some universally shared concept of law? Worries loom either way. If a legal theory only aims to capture the concept of law employed in a particular jurisdiction, then that would render the theory parochial and it might lose its interest for those who are not concerned with that particular jurisdiction. On the other hand, one might doubt that there really is a universally shared concept of law that is employed by practitioners in all jurisdictions—or if there is one, it is doubtful that it is anything more than the sort of thin concept that one possesses in virtue of knowing what the word “law” in its juridical sense means.

A deeper worry about all forms of conceptual analysis is the question of why we should care about anybody’s concept of law in the first place (Marmor 2013, 216–217; Leiter 2007, 177–79). After all, as philosophers, it seems that it is the nature of law itself that we care about understanding (Raz 2004, 7, 10). Granted, there are interesting sociological questions to be asked about what various groups of people believe to be the case about how law functions. But it is not obvious that there is anything distinctively philosophical about such questions. Insofar as philosophers (qua philosophers) are interested in what people believe about a given concept, this would be because understanding people’s beliefs about the concept is a route to understanding that which it is a concept of (Raz 2004, 4, 10). Accordingly, one might think that what theories of law aim to capture is not anybody’s concept of law in particular, but rather the nature of law itself. (See also the entry on concepts , section 5.2.)

A possible response to this objection is to assert that since law is a social phenomenon and is in part constituted by practitioners’ own understanding of the practice they are engaged in, collecting evidence about the concept of law possessed by legal practitioners is an especially useful way to investigate law itself (Stravopoulos 2012, 79). Still, one might wonder whether this route to investigating the nature of law itself would be the most effective strategy to employ, given its indirectness. Why limit ourselves to asking questions about concepts if law can be studied directly?

A very different response would be to adopt a Platonist account of concepts, according to which they are not mental representations at all, but rather abstract objects akin to the objects of mathematical inquiry. The concept of law, then, would be the abstract object one must grasp in order to think about law. Accordingly, it is this abstract object— the concept of law—that philosophers care about and aim to investigate using the method of conceptual analysis (cf. Bealer 1998). Nonetheless, this view of concepts faces familiar objections. For one, an account is needed of how we can have access to the concept of law, conceived of as an independently existing abstract object. Moreover, even if we can access it, a puzzle arises about how different people who all determinately grasp the concept of law could possibly end up disagreeing about its nature (Sarch 2010, 468–73). Finally, while it might be plausible that a priori disciplines like mathematics and logic aim to investigate abstract objects (see the entry on platonism in the philosophy of mathematics ), it is not clear that the investigation of a social phenomenon like the law, which is heavily dependent on human beliefs, attitudes and behavior, can be understood analogously. While mathematicians might be investigating the nature of abstract objects like numbers or sets, it seems more doubtful that legal philosophers are investigating the abstract object law .

Given the above doubts about conceptual analysis, several views have been suggested according to which first-order legal theories are primarily in the business of describing and explaining the nature of law itself , not any concept of it. Reductionist and naturalistic views fall into this category. (As noted below, such views need not completely eschew the armchair methods just sketched, but to the extent these methods remain viable, a very different explanation of their defensibility would have to be given.)

In particular, reductionist views take it that illuminating the nature of law is a matter of explaining what the law is, and how it operates, in terms of more foundational facts. As a result, first-order theories of law succeed to the extent that they accomplish this in an explanatorily powerful way (Marmor 2013). The goal of a first-order theory, on this sort of view, is to offer a metaphysical reduction of law: that is, to show that the phenomenon of law is actually constituted by, and fully reducible to, some other more foundational type of phenomenon (in the way that chemistry could in principle be reduced to particle physics). Thus construed, positivism, for example, would seek to explain the nature of law by reducing facts about what the law is, how it functions and what it requires, to more foundational social facts—e.g., about people’s behavior, beliefs and dispositions. By providing a reduction of this kind, a theory like positivism purports to illuminate the phenomenon of law itself by breaking it down into its constituents and explaining how they together make up the complex social practice that is the law. (For more on metaphysical reduction in general, see Schroeder 2007, 61–83; see also the entry on scientific reduction .)

One well-known type of reductionist view is naturalized jurisprudence. Brian Leiter has been the most prominent defender of this position (Leiter 2007). Like other reductionist views, naturalized jurisprudence takes the aim of legal theories to be to explain the nature of law itself (not anybody’s concept of it). But what is characteristic of naturalized jurisprudence is that it also insists that a purely empirical methodology should be used in doing so (Leiter 2007, 180–81, 183–99). (See also the entry on naturalism in legal philosophy .)

Naturalists might part company with adherents of other reductionist views over whether or not the armchair methods of philosophers, and related appeals to intuitions, thought experiments and the like, are misguided. The naturalist is likely to reject this mode of inquiry, while other reductionists may be more amenable to using it. A reductionist could in principle defend this sort of inquiry, for instance, by claiming that our particular-case intuitions involve a concept that we have acquired from experience with legal practice, and so such intuitions can be one useful source of information about the nature of law itself. Moreover, if legal practice (as a social phenomenon) is partially constituted by practitioners’ own beliefs and attitudes towards the practice they are engaged in, then evidence about legal practitioners’ concept of law might prove especially relevant as evidence about the law itself (Stravopoulos 2012, 79).

By contrast, naturalists tend not to endorse the armchair method of testing theories of law against intuition, given their aim of making “philosophical theorizing continuous with and dependent upon scientific theorizing” (Leiter 2007, 35). Leiter argues that our intuitions about law are too unreliable to be afforded much epistemic weight (as others have argued with respect to intuitions in other areas of philosophy) (Leiter 2007, 180, 184; cf. Cummins 1998). On Leiter’s view, philosophers generally should aim to unpack the “concepts that have been vindicated by their role in successful explanation and prediction of empirical phenomena” (Leiter 2007, 184). Thus, he suggests a methodology that “tak[es] seriously the…social scientific literature on law…to see what concept of law figures in the most powerful explanatory and predictive models of legal phenomena such as judicial behavior” (Leiter 2007, 184). This methodological view, however, raises questions about why the legal philosopher should study only judicial behavior and not something else. More generally, the naturalist owes an account of what features of law are most in need of explication and why.

A different sort of concern that arises for reductionist views (and perhaps naturalistic views as well) is that it may pose particular problems for positivism. Specifically, if law is a normative phenomenon that gives rise to legal obligations, one might worry that it is not possible to reduce legal facts (i.e., facts about what our legal obligations are) to a set of purely non-normative facts, e.g., social ones. One might think that this would impermissibly transgress the familiar (though not uncontroversial) is-ought gap. (For a discussion of this sort of worry about positivism, see Shapiro 2011, 47–49.)

In response, one route that positivists who want to be reductionists could take is to maintain that legal facts really are descriptive in nature, not genuinely normative. In particular, such positivists might claim that facts about what legal obligations we have simply are descriptive facts about what the law holds that we ought to do—not normative facts about what we really ought to do (Shapiro 2011, 188; see also Hart 1994, 110).

Another recent methodological view developed by Plunkett and Shapiro (2017) takes general jurisprudence to be just another branch of metanormative inquiry. The latter kind of inquiry as a general matter aims to explain how normative thought, talk, and entities (if any) fit into reality. Metaethics is another branch of metanormative inquiry, which focuses on how ethical thought, talk and entities fit into reality. Thus, on the present view the subject of inquiry in general jurisprudence would be legal thought, talk and entities (if any), and the aim of the field would be to explain how such thought and talk about law—as well as legal structures and legal properties (if any)—are best accounted for in one’s general philosophical view of reality. On this view, jurisprudential inquiry would be continuous with—and methodologically quite similar—to the work done in other areas of normative inquiry, especially ethics and aesthetics.

One question that arises for this position, however, concerns the extent to which this is a distinct methodology from those discussed above. If the focus of one’s metanormative inquiry is legal thought and talk, we seem to get rather close to the conceptual analysis picture of how jurisprudence should proceed. On the other hand, if the focus of inquiry emphasizes how legal entities or properties fit into reality in general, then the view ends up seeming rather close to the naturalist position that the topic of jurisprudential inquiry is phenomenon of law itself. Nonetheless, perhaps a particular attraction of the metanormative view is that it can show how both the conceptual analysis picture and the naturalist picture capture distinct pieces of the bigger enterprise of the task that jurisprudence is engaged in. Thus, rather than purporting to replace the other methodologies discussed above, the metanormative view, if sound, would do away with there being a privileged starting point for jurisprudential inquiry (such as metaphysics of legal content, the semantic analysis of legal statements, or the nature of legal obligations).

A different sort of approach to methodology in jurisprudence takes it that the proper aim of a legal theory is to specify a substantive conception of law that it would be especially desirable for people to adopt. Moreover, even if the conception of law that this inquiry ends up supporting departs radically from our pre-theoretical understanding of law, then the resulting theory would recommend abandoning that prior understanding of law. Accordingly, if jurisprudence is chiefly a prescriptive endeavor, then theories of law might end up being radically revisionist in nature (though, of course, not necessarily).

As explained in the next sub-section, Dworkin’s methodological view incorporates some prescriptive elements. But one prominent advocate of an exclusively prescriptive project is Neil MacCormick (MacCormick 1985; see also Campbell 1996; Murphy 2001; Postema 1989; Schauer 1996; Waldron 2001). MacCormick argues that there are compelling normative arguments in favor of adopting a positivist conception of law. In particular, he suggests that values like autonomy and freedom of conscience demand that the law not regulate with a heavy hand “the sphere of aspirational values, of duties of self-respect and of duties of love,” a sphere that concerns “questing for the good beyond duty, or for the right lines of development of a self, or for the proper regard to bestow upon one’s family, friends or neighbors” (MacCormick 1985, 35–36). Values like autonomy and freedom of conscience, McCormack thinks, support the claim that at least within this sphere of conduct, it is desirable to keep the question of what the law requires entirely separate from the question of what morality requires. (However, MacCormick also allows that the law properly can regulate the sphere of “duties of justice,” as these duties are in some sense weightier (MacCormick 1985, 35).) Accordingly, at least in some spheres of conduct, the question of what the law is ought to be held distinct from the question of what morality requires. Thus, MacCormick seems to be offering a normative argument for a claim that has often been associated with positivism, namely a version of the Separation Thesis. (Though, as seen earlier, it is not clear that all positivists must be committed to a strong version of this thesis.)

While the question of what conception of law it is most desirable that people adopt is surely a significant one, it is important to note that the prescriptive view of methodology in jurisprudence is not genuinely in competition with either the conceptual analysis view or the reductionist approach. After all, it might turn out, for example, that positivism provides the best account of our concept of law, or perhaps is the best reductive account of the phenomenon of law itself, even though there are compelling normative arguments for changing the practice or adopting a new concept of it that, say, comports with natural law theory. Accordingly, accounts of the concept of law, or reductive theories of law, are not necessarily inconsistent with prescriptive accounts of what legal theory it would be most desirable from the moral point of view to adopt.

A final methodological view, which deserves separate treatment both because of its influence and sophistication, is Dworkin’s (Dworkin 1986). This view takes it that (i) the target of a first-order theory of law is existing legal practice and (ii) these theories succeed to the extent that they offer a defensible constructive interpretation (in Dworkin’s sense) of that practice. According to the constructive interpretation view, the aim of a first-order theory of law is not to analyze any concept or to reduce legal facts to other more foundational facts. Rather, the aim of a legal theory is to reconstruct the behavior and self-understandings of participants in legal practice and, moreover, to do so in a way that casts this practice in its best moral light. As a result, a theory of law is more successful the better it both fits with the data about how legal practitioners understand the practice they are engaged in, while also normatively justifying that practice (Dworkin 1986; Perry 1995, 129–31; see also the entry on legal interpretivism ).

One concern about the constructive interpretation view of methodology in jurisprudence is that it may not be in genuine competition with either the conceptual analysis or reductive views of methodology. After all, one sort of project is to explain what law actually is and how it operates (perhaps according to our concept of it). But it is a very different sort of project to explain how we should conceive of the law in order for legal practice to be normatively justified. It seems possible that our account of what law actually is tells us one thing (e.g., that certain features of it are essential and others not), while our account of what law should be like in order for the practice to be as justified as possible tells us to think of law in a rather different way (e.g., as having different essential features). Accordingly, some have argued that the constructive interpretation view engages with the other methodological views mentioned above only if it denies what they assert: viz., that legal theories attempt to provide an explanation (perhaps of some particular kind—e.g., reductive) of the actual nature of law (or perhaps our concept of it).

One way that adherents of the constructive interpretation view might deny what certain other methodological views assert is by denying that it is even possible to give a reductive explanation of law. (For discussion, see Marmor 2013, 218.) The thought would be to claim that law is a normative practice, and normative facts cannot be reduced to purely non-normative facts without losing something essential. In response, the reductionist might either deny that legal facts are genuinely normative (in which case the sought-after reduction would be unproblematic), or she might assert that any successful reduction will have to reduce legal facts to a set of facts that includes normative facts (in which case a version of natural law theory might appear attractive).

2.2 Is Legal Theory Inherently Evaluative?

A second widely-discussed question about jurisprudential methodology is whether first-order legal theories are inherently evaluative. The above views about the proper target of first-order theories of law have different implications about this second question. But before explaining that, we must first get the relevant question more clearly in view.

To begin with, one might wonder where the interest in the question of whether legal theory is inherently evaluative comes from. Some of this interest likely traces to the skeptical worry that legal theories purporting to be purely descriptive in fact are pushing some hidden ideological or political agenda. (For more on this, see, e.g., John Gardner’s introduction to Dickson 2004.) A second source of the interest in this question may be the suspicion (or hope) that if legal theory proves to be inherently evaluative, that would be an independent reason to adopt some version of natural law theory. Whether this is so remains doubtful, however, since meta-questions about the methodology of legal theory prima facie seem to be independent of questions in first-order legal theory like what the determinants of the content of law are. What is more, legal scholars might be drawn to the present issue through consideration of Dworkin’s argument that there is a very tight connection between the evaluative nature of theorizing about the law and the evaluative nature of law itself, rendering the content of law inevitably dependent, at least in part, on moral-political considerations. Regardless of the motivations for engaging in the debate about whether legal theory is inherently evaluative, however, this debate has taken on independent significance and has been a fruitful source of insight in its own right.

To avoid confusion, the question we are concerned with here must be clarified in several ways. For there are a number of uncontroversial ways in which legal theory plausibly is or might be evaluative, and these do not go to the heart of the methodological debates in jurisprudence.

First, there are several trivial ways in which legal theory, like theories about any topic , plausibly cannot be entirely value-free. In particular, it seems that one cannot engage in the business of theorizing about law without evaluating the extent to which various theories are coherent, simple, clear, elegant, comprehensive, and so on (Dickson 2004, 32–33). Granted this means that legal theorists must engage in a form of evaluation. But there is nothing special about legal theory in this regard. After all, these meta-theoretical virtues are criteria for the success of theories about any subject matter.

A second seemingly uncontroversial way in which legal theory is evaluative is that one cannot begin to develop a theory of law without determining which of its central features are to be accounted for (Dickson 2001, 38–45). John Finnis, for example, argues that one cannot do first-order legal theory without taking a stand on what the important features of law are that adequate theories must explain (e.g., the law’s claim to authority). However, this seems to require evaluation (Finnis 1980, 9–15).

Nonetheless, it is not likely to be especially controversial that legal theory is evaluative in this way. To see why, distinguish between (a) thick evaluative claims , which predicate some kind of moral goodness, or perhaps all-things-considered value, of an item and (b) thin evaluative claims , which do not. (This distinction roughly tracks Julie Dickson’s distinction between directly evaluative propositions and indirectly evaluative propositions. See Dickson 2001, 51–55.) Thus, the simplest thick evaluative claims have the form: $X$ is morally [all-things-considered] good [bad] . Such claims might also be comparative in nature, such that they have the form: $X$ is morally [all-things-considered] better [worse] than $Y$. By contrast, thin evaluative claims judge how well some item fares relative to a standard that is neither moral nor all-things-considered normative. Such claims do not entail any thick evaluative claims either. Examples of thin evaluative claims thus would include “$X$ is important” and “$X$ is interesting”. Accordingly, even if legal theorists must make thin evaluative claims in order to be able to begin the project of developing a first-order legal theory, this does not mean that they must make thick evaluative claims in order to do so. After all, one might construct a theory that captures a range of legal phenomena that are deemed central or important, while still remaining agnostic about whether these phenomena are themselves valuable.

A third way in which legal theory could in principle be evaluative, though uncontroversially so, is suggested by the prescriptive view discussed in section 2.1.3. If the job of a first-order theory of law is to identify the concept of law it would be most desirable for us to employ, then there is a sense in which the resulting theory of law would of course be evaluative. Nonetheless, as seen above, prescriptive theories aim to answer a different question from theories in the conceptual analysis, reductive or interpretive categories. Thus, what matters to the debate about whether legal theory is evaluative is not whether legal theory in principle could be evaluative, but whether it is inevitably or necessarily so.

Now we are in a position to fully appreciate the question of primary interest here. In particular, it is whether theories about the nature of existing legal practice (or perhaps our concept of it) necessarily involve or entail thick evaluative claims about the law. That is, does offering a first-order theory of law of either the conceptual analysis, reductive or constructive interpretation varieties require one to accept claims about how valuable the law, or some feature of it, is? This is the question to be discussed in the remainder of this entry.

Some answers to the question that was discussed in section 2.1 suggest that theories of law are inherently evaluative in the sense of committing advocates of these theories to thick evaluative claims about the law. As we will see, this is most plausibly the case on the constructive interpretation view of methodology. By contrast, other answers to the question discussed in section 2.1 do not obviously entail that first-order legal theories commit their proponents to thick evaluative claims. In particular, this is the case for the conceptual analysis and reductive views of jurisprudential methodology. At least on their face, both these views seem to allow that there can be purely descriptive accounts of law—i.e., accounts that capture the central features of law without being committed to any moral or all-things-considered evaluation of the law. After all, one might think that a particular account does a good job of capturing some widely shared concept of law, but this does not obviously commit one to saying that law, on this concept of it, is good . Likewise, one might endorse a reduction of legal facts to some more foundational set of facts (e.g., certain social facts) without this committing one to thinking that the law is valuable or morally justified.

As a result, at least on their face, both the conceptual analysis and reductive views seem to allow that there can be first-order theories of law that are purely descriptive. Some argument would be needed if one is to endorse the opposite conclusion. Accordingly, let us consider some prominent arguments for thinking that legal theory must be inherently evaluative in nature. (For an overview, see Marmor 2011, 122–35.)

The argument from legal functions

One central argument to the effect that legal theory must be evaluative in the relevant sense begins from the idea that understanding what the law is requires taking a view about what functions it serves (Finnis 1980, 12–17; Perry 1995, 114–20). Moreover, one might think that functions are evaluative in the sense that attributing a function to something is to endorse a standard by which that thing may be judged as successful or unsuccessful. In this way, one might think that legal theory, too, is inherently evaluative.

While this line of thinking plausibly shows that legal theory requires accepting some evaluative claims, it does not obviously show that legal theory necessarily involves thick evaluative claims (Dickson 2001, 114–125). Claims of the form “the function of $X$ is $F$” are naturally classified together with “$X$ is important” (or more precisely, “$X$ is important for some purpose $Y$”) as thin evaluative claims. Accordingly, asserting that the function of law is $F$ does not obviously entail any thick evaluative claims about law. After all, it is not obvious why attributing a function to something requires believing that performing that function is either all-things-considered or morally good . Thus, attributing a function to law need not entail any thick evaluative claims.

The argument from the internal point of view

A second natural argument in favor of seeing legal theory as inherently evaluative in the relevant sense relies on the idea that any adequate theory of law must take account of the internal point of view that legal practitioners tend to adopt towards the law. More specifically, taking the internal point of view towards the law is a matter of adopting some kind of attitude of endorsement towards it, seeing it as in some sense justified or as providing reasons for action (Shapiro 2011, 96–97; Perry 1995, 99–100; see also the entry on legal positivism ). Moreover, it is common to think that a critical mass of the participants in legal practice must adopt the internal point of view towards the practice in order for the practice to genuinely count as law. This is a fact that any adequate theory of law must account for, one might think. Accordingly, since the internal point of view involves a positive evaluation of the law, and since any adequate legal theory must account for this point of view, one might infer that any adequate theory of law must itself be inherently evaluative. (One finds versions of such an argument, e.g., in Perry 1995, 121–25; Waldron 2001, 423–28.)

It is unclear whether this argument succeeds, however. After all, it seems in principle possible to explain what kinds of considerations legal practitioners endorse, and why, without oneself endorsing those considerations. Similarly, a first-order legal theory might be able to plausibly explain the truism that legal practitioners tend to take the internal point of view towards (i.e., endorse) the law in their respective jurisdictions without the theory thereby being committed to the claim that the law in any particular jurisdiction (or the law in general) is valuable or justified. Accordingly, it is not obvious why a theory of law cannot in principle capture the internal point of view taken by legal practitioners towards the law without itself being committed to any thick evaluative claims about the law.

The argument from interpretation

Probably the most influential argument for thinking that legal theory is inherently evaluative proceeds from the idea that legal theory is an interpretive endeavor in Dworkin’s sense (Dworkin 1986; for criticism, see Dickson 2001, 105; Marmor 2011, 126–30). To say that legal theory is an interpretive project is to claim that fully understanding what the law is requires construing it as the best instance it can be of the type of thing that it is. Moreover, one might think that in order to construe legal practice as the best instance of the kind of thing that it is requires making thick evaluative claims about the law. (See the entry on legal interpretivism .)

One might attempt to respond to this argument in two ways. A natural, though ultimately unsuccessful, reply is that construing something as the best instance of its kind that it can be does not require taking that kind to be good . Saying that Bernie Madoff was (for a time) the best fraudster in history does not entail that one approves of fraud. As a result, saying that the law must be thus-and-so in order to be a good instance of its kind does not commit one to any thick evaluative claims. Nonetheless, there is a deeper or more interesting sense in which Dworkin’s view renders legal theory inherently evaluative. For Dworkin, legal theory is an interpretive enterprise, and offering a constructive interpretation of legal practice requires construing it in its best moral light . Thus, offering an interpretation of legal practice would require taking a stand on which of the available ways of construing that practice is morally better than the others. Of course, this does not necessarily require asserting that the law, on any particular construal, is good —full stop. But it does seem to require at least saying that some construals of legal practice are morally better than other construals would be. This looks to be a thick evaluative claim, albeit a comparative one. Moreover, one cannot make such comparative judgments without having a view about what would make one construal of legal practice morally better than another. Thus, in at least this sense, taking legal theory to be an endeavor that is interpretive in Dworkin’s sense would make legal theory count as inherently evaluative in the sense we are concerned with here.

Accordingly, if one wants to maintain the possibility of purely descriptive first-order legal theories, a more promising strategy for responding to the argument from interpretation would be to question its key premise—viz., that legal theory necessarily is an interpretive endeavor in Dworkin’s sense. In order for a proponent of the argument from interpretation to assert this premise, some rationale would have to be given for it. That is, some argument would be needed to explain why we should think that understanding law requires giving a constructive interpretation of it. A critic of the argument from interpretation, then, might claim that the argument’s proponents have not carried their burden of providing a rationale for this premise, on which the argument crucially depends.

One possible rationale that might be offered here is that since social practices essentially involve communication, and understanding any form of communication necessarily involves interpreting speakers’ claims, understanding the social practice of law necessarily involves interpreting it. However, this rationale is too quick. Even if it is true that understanding any social practice requires interpretation of some kind or other , it does not follow that doing so requires a constructive interpretation in Dworkin’s sense —i.e., identifying a construal of the practice that casts it in its best moral light (Marmor 2011, 127–28). But the latter claim, of course, is what proponents of the argument from interpretation need to establish in order to reach their desired conclusion that legal theory is inherently evaluative.

Accordingly, we seem to be left in the following dialectical situation. Whether or not legal theory is inherently evaluative in the relevant sense depends on whether the argument from interpretation succeeds. Whether that argument succeeds, in turn, depends on its key premise, i.e., the claim that understanding the law necessarily requires giving a constructive interpretation of it. If a non-question begging argument can be given for this claim, then there would be reason to think that legal theory necessarily is evaluative in nature. By contrast, if no non-question begging argument can be given for thinking that understanding law requires a constructive interpretation, then one would be free to maintain that there can be purely descriptive first-order legal theories.

Of course, even if the argument from interpretation fails and purely descriptive legal theories remain possible , it could still be a worthwhile project to attempt to give a constructive interpretation of legal practice, and the output of this project would indeed be a partially evaluative theory. Nonetheless, these two types of theory would not genuinely be in conflict, as they would be addressed to answering different questions. In the end, therefore, “methodological pluralism” may be the most apt characterization of the state of play in jurisprudence.

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