CRAZY LITTLE THING CALLED ‘LAW’ Lex v.
Phil story
A. The Invention of Law
Hobbes’ claimed that the state of nature—that is, the social
condition without law and government—would be “a war of all
against all’ in which life would be “solitary, poore, nasty, brutish and
short.” His point was not that life was intolerable without law, but
that it would be, and that, rather than risk such fate, people who
were fortunate enough to live under stable governments, even
tyrannical ones, should not attempt to overthrow them: on the
contrary, they should obey their leaders in almost all circumstances.
It turns out was doubly wrong. Archaeological evidence and
extrapolation from ethnographic observation of present-day
hunter-gatherers suggest that, until 12,000 years ago, most humans
lived in groups called “bands.” These are small collections of
individuals that are generally mobile, have a relatively fluid
membership, and subsist through hunting and gathering. They lack
formal authority structures and are governed mostly by tradition,
consensus, and persuasion by elders. Those who live in bands, in
other words, don’t have law.
His second mistake was to assume that the state of nature was a
state of war. These groups seem to have been governed by rules
that regulated the bare essentials of social life: sharing of food,
selection of mates, forbearance from physical aggression, and so on.
Cooperation and order have not only been possible throughout
human prehistory: they have been the norm. Prehistoric society was
anarchic only in the strict, literal sense that it did not have what we
now call “law.” The state of nature is not a philosophical fantasy,
but a historic reality experienced by countless generations of human
beings.
Civilization is possible only with a very high degree of social
cooperation and interdependence, which, in turn, is possible only
when a community has the ability to regulate social relations
efficiently and effectively. Law was a revolutionary invention
precisely because it permitted this regulation.
B. How Is Law Possible?
In creating law, they produced a technology that has remained,
along with organized religion, popular morality, and social
convention, an invaluable tool for communal control.
We remain puzzled by how the law could have been invented.
Acquiring legal authority seems to involve a catch-22: in order to get
legal power, one must already have legal power.
Having rules laid down in advance would prevent feuds from
starting and help coordinate behaviour so as to produce goods from
which all could profit.
Phil’s argument can be used to show that no assertion of legal
power could ever be true. To argue otherwise is to engage in
viciously circular reasoning. The only option in this case is to
identify some other norm that confers power on the ratifiers to
ratify the state construction.
Trying to find the top of the chain of authority, it would seem, leads
us either in a circle or to an infinite regress. Yet, it is precisely this
kind of ultimate authority that must be found in order for claims of
legal authority to be true.
These two principles in combination suggest that neither chickens
nor chicken eggs can exist in a finite universe, for the existence of
one presupposes the existence of the other.
C. A Note on Norms
“Norm” is a philosophical term. One reason that philosophers use it,
instead of “rule,” is that rules are necessarily general. The benefit
of using this term is that one can cast one’s net as widely as possible.
The downside is that philosophers deploy it in many different ways,
often without explicitly specifying which particular one they are
using in a given instance.
Norms should be distinguished from the sentences that represent
them. The texts that create norms themselves are not norms.
As their name suggests, norms are “normative,” not descriptive.
They don’t purport to tell their subjects what they will or might do;
rather, they purport to tell them what, in some sense, they are
entitled to, ought to, or may do.
Norms need not to be valid.
D. Possible Solutions
Possibility Puzzle arises because it appears that anybody with power
to create legal norms must derive its power from some norm, while
any norm that could confer such a power must itself be created by
someone with the power to do so. There are two ways to stop this
threatened regress:
 By finding a body whose power does not derive from some
norm. Call such a body an “ultimate authority.” Any authority
in a particular legal system will have derived its power from
this ultimate authority.
 By finding a norm that confers power to create legal norms,
but which was not itself created by someone with a similar
power. Call this norm an “ultimate norm.” The legal power of
any body in a particular legal system would be traceable to
 some ultimate norm that exists without having been posited
by anyone else.
God as the Ultimate Authority
 Classic natural law view
 God created the natural law, which confers the legal right on
rulers to rule. God’s moral authority, in other words, is both
necessary and sufficient to create legal authority.
 Modern natural law theorists tended to look to certain
political communities’ moral right to determine the terms and
direction of social cooperation. According to them, legal
authority must ultimately derive from some moral norm. The
existence of legal authority ultimately rests on moral facts.
Sovereign as the Ultimate Authority
 Positivists
 Legal authority is grounded on social facts. It ultimately rests
on brute power—that “might” ultimately makes legal “right.”
 The sovereign is the ultimate authority, because his power to
create legal norms rests merely on the social facts that his will
is habitually obeyed by the political economy and that he
habitually obeys no one else.
All instances of legal authority are traceable to a social rule. Legal
systems are simply products of an established practice of deference.
In other words, the fundamental rules of the legal system are
ultimate norms that rest purely on social facts.
E. Ultimately
The legal positivist does not seriously mean that the law is
ultimately determined by social facts alone, for the simple reason
that almost no one believes that social facts are among the ultimate
constituents of the universe.
F. Hume’s Challenge
Riddles enable them to isolate deep, and hence often unexamined,
assumptions underlying our conception of a certain area or subject
matter and show that these presuppositions clash in some
fundamental way. Engaging with the puzzle allows philosophers to
test the validity of these assumptions and root out those deemed to
be mistaken.
The Puzzle, therefore, is best seen as an analytical device that legal
philosophers can use to determine the foundations of legal systems.
Asking the same question in the form of a puzzle about the
possibility of law, however, gives us a better handle on how to
resolve an issue about which there are real and living doubts. It
allows them to look at the question from a different angle, thus
suggesting new approaches to resolving these issues.
If the positivist solutions are correct, and the law rests on social
facts alone, then the only way to definitively determine the
fundamental rules of a particular legal system and its proper
interpretive methodology is to engage in sociological inquiry.
If the natural lawyer is correct, and the law rests on moral facts as
well, then these legal questions can be conclusively answered only
by engaging in moral argument.
Solving it is a matter of particular urgency for all those who care
about legal doctrine.
G. Positive v. Natural
Because legal judgments must track legal facts, a theory that tells us
which facts ultimately determine the content of the law will be
essential for a theory that tells us how to discover the content of the
law.
According to the legal positivist, the content of the law is ultimately
determined by social facts alone. To know the law, therefore, one
must (at least in principle) be able to derive this information
exclusively from knowledge of social facts.
Legal positivism, therefore, appears to violate the famous principle
introduced by David Hume (often called “Hume’s Law”), which
states that one can never derive an ought from an is.
H. Nino and Dino
Because normative conclusions cannot be derived exclusively from
descriptive premises, normative reasoners must ensure that their
reasoning takes a normative judgment as input if a normative
judgment is output. Call this “normative in, normative out” pattern
of inference a “NINO” pattern.
Hume’s Law is violated, therefore, if a normative judgment comes
out but only descriptive judgments went in. call this offending
sequence a “DINO” pattern.
The legal positivist allows the reasoned to derive normative
judgments about legal rights and duties from descriptive judgments
about social facts. Normative judgments come out, but none have
gone in. Call this objection to legal positivism “Hume’s Challenge.”
Natural law theory is untouched by Hume’s Challenge because it
insists on solving the Possibility Puzzle by referencing moral facts,
not social ones. To answer questions that require knowledge of
fundamental legal rules, the legal reasoner must form moral

judgments and use them as premises to derive legal conclusions.

The natural lawyer respects NINO. Normative judgments about

the law may come out only because normative judgments about
morality have gone in.

I. Pick Your Poison

By insisting on grounding legal authority in moral authority or moral

norms, natural law theory rules out the possibility of evil legal
systems. Call this the “Problem of Evil.” The natural lawyer must
account for the possibility of evil legal systems given that the law

is necessarily grounded in moral facts. Positivists, on the other hand,

have no such difficulties. In either case, the legal authority of evil
regimes can be explained by appealing to certain social facts, as
opposed to moral ones.

If we follow the natural lawyer and try to solve the Possibility Puzzle
by ultimately grounding the law in moral facts, then we preclude the
possibility of morally illegitimate legal systems.

If we eschew the appeal to moral facts completely and follow the

positivist in founding the law on social facts alone, we solve the
Possibility Puzzle only on pain of violating Hume’s law.

We can know which poison to pick only once we have assessed the
toxicity of the positivistic one first.