The nature of law

Legal reasoning is, of course, about law. So it might seem that to address properly the subject of legal reasoning, we must first specify what we mean by law. We do not think this is the case: nothing in our analysis of legal reasoning requires an answer to the jurisprudential question of what counts as law.

In classic debates about the identity of law, the principal divide has been between natural law and positivism (Bix 2002; see also Alexander and Sherwin 2001). Those who support the natural law position hold that, because law purports to guide action and impose obligations, the validity of any proposition as law depends on its conformity to moral standards. Positivists, on the other hand, hold that the status of a norm as law depends on social facts and, in particular, on the fact that the norm was posited by a source generally recognized as a lawmaking authority. Moral evaluation is not necessary - and, on some versions of positivism, not permissible - in determining the identity and content of law. Another difference between natural law and positivism is meth­odological: natural law theorists look at law from the committed stance of insiders, who look to law for their own practical guidance, whereas positivists look at law from the external position of observers analyzing the practices of those who are committed to law (Coleman 2002; Hart 1961; Finnis 2002).

In some ways, our understanding of the function and operation of law fits more comfortably within a positivist theory of law than a natural law theory. Communities recognize lawmaking authorities because they want the benefits of settlement; effective settlement requires seri­ous rules; and serious rules, even the best serious rules possible, will produce morally defective outcomes in some cases.

At the same time, however, our view of law is linked to morality in several ways. We recognize that the positivist's route to settlement relies on insiders' recognition of lawmaking authority and insiders' compliance with particular laws, both of which are moral matters. The settlement function that justifies legal authorities and their posited norms - the very phenomena that are the focus of positivism - is itself a moral function. Its aim is to reduce the moral costs of anarchy, costs that will occur even among those who are morally motivated. Moreover, as we stated at the outset, the act of settlement entails moral reasoning: the authority's rules, if not actually justified, must be the product of a conscious process that is susceptible to justificatory argu­ment. Only then can members of the community view them as an exercise of the authority they have conferred, which is authority to settle what the community's values require.

Thus, for us, positivism and natural law are complementary rather than conflicting positions that describe two different facets of ‘law'. Indeed, a central feature of our analysis of law is the dilemma of rules described earlier, a dilemma that arises from this dual character of law and raises doubts about the possibility of law in the positivist sense.

In this book, we approach the problem of legal reasoning within a mainly positivist framework. We focus on how judges respond to pos­ited law and how they distinguish between reasoning from posited law and reasoning in the absence of posited law. Moreover, our analy­sis proceeds from a detached perspective of the kind associated with positivism.

Ultimately, we argue that courts function in two ways: they reason deductively from rules posited by others; or they posit law, relying on moral and empirical judgment, as any lawmaker must. In some cases - those involving legal standards - these two functions are combined within a single legal directive, but in no case do courts meaningfully employ an alternative form of reasoning unique to law. They do not discover non-posited law in past decisions or texts or combine moral­ity and posited law to construct legal principles. At the same time, however, we are sensitive to both the moral ends of law (settlement and its benefits) and the dilemma that judges and rule subjects face when posited law appears to dictate morally erroneous results.