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LAW'S BOUNDARIES

Published online by Cambridge University Press:  24 August 2020

Adam Perry Open the ORCID record for Adam Perry [Opens in a new window]
Adam Perry*
Affiliation:
Faculty of Law, University of Oxford; Brasenose College
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Abstract

The norms of a legal system are relevant in deciding on people's rights and duties within that system. Some norms that are not part of a legal system are also relevant within it: norms of foreign legal systems, games, clubs, contracts, grammar, and so on. What distinguishes the norms of a legal system from the norms merely relevant within it? Where, in other words, are law's boundaries? There are three existing answers in the literature, from Kramer, Shapiro, and Raz. None succeed. A better answer starts with a distinction between two types of legal relevance: direct and indirect. Norms of a legal system are directly relevant within it. Norms that are not part of a legal system are at most indirectly relevant within it. Thus, the two types of norms are distinguished by the directness of their relevance.

Type
Research Article
Information
Legal Theory , Volume 26 , Issue 2 , June 2020 , pp. 103 - 123
Copyright
Copyright © The Author(s), 2020. Published by Cambridge University Press

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Footnotes

*

For comments on drafts I thank Thomas Adams, Tara Alberts, Hasan Dindjer, Andrea Dolcetti, James Edwards, Kate Greasley, Ori Herstein, Sandy Steel, and Leah Trueblood, as well as the participants at the Legal Philosophy Workshop and the New Directions in Legal Philosophy conference. I also thank two anonymous reviewers.

References

1. Saxby v. Fulton, [1909] 2 KB 208.

2. Joseph Raz, Practical Reason and Norms (rev. ed. 1990), at 153. What I am calling “adoption” is sometimes called “application”: see Clermont, Kevin, Degrees of Deference: Applying vs. Adopting Another Sovereign's Law, 103 Cornell L. Rev. 243 (2018)Google Scholar.

3. Ronald Dworkin, Justice in Robes (2006), at 238.

4. Id. at 239.

5. Kramer, Matthew, How Moral Principles Enter into Law, 6 Legal Theory 83, 104 (2000)CrossRefGoogle Scholar.

6. Id. at 105.

7. Id. at 105.

8. Id. at 106.

9. Id. at 106 (footnote omitted).

10. Smith v. United States, 508 U.S. 223 (1993).

11. Id. at 228–229. For discussion, see Hobbs, Pamela, Defining the Law: (Mis)using the Dictionary to Decide Cases, 13 Discourse Stud. 327 (2011)CrossRefGoogle Scholar.

12. In a footnote to the block quote above, Kramer says:

In highly unusual circumstances … rules of grammar or pronunciation could indeed serve as the justificatory bases for official decisions. … In such circumstances, the aforementioned rules are indeed legal norms.

Kramer, supra note 5, at 106. Perhaps Kramer would bite the bullet and say that the norms governing the phrase “to use” are part of American law. This is counterintuitive, to say the least.

13. Other alleged counterexamples are the norms of arithmetic, logic, rationality, etc. These norms are not under anyone's control. They are also relevant within English law. In Saxby, for example, to calculate how much Fulton owed Saxby, Bray J. applied a norm of arithmetic according to which 3,080 + 1,070 = 4,150. According to Kramer's test, it seems to follow that the norms of arithmetic and the like are part of English law—which, of course, they are not. See Dworkin, supra note 3, at 239; Priel, Dan, Review of Where Law and Morality Meet, 69 Mod. L. Rev. 114, 116 (2006)CrossRefGoogle Scholar. Kramer's response is that what might appear to be norms of arithmetic, logic, rationality, etc. “are not norms at all.” These “rules” are “universally quantified modal propositions which declare how things necessarily are.” They “do not prescribe how things ought to be or how people ought to behave”; they are concerned “only with what is.” Kramer, Matthew, Why the Axioms and Theorems of Arithmetic Are Not Legal Norms, 27 Oxford J. Legal Stud. 555, 559, 561 (2007)CrossRefGoogle Scholar. Kramer's response has not satisfied all of his critics. See Priel, Dan, Free-Floating from Reality, 21 Can. J.L. & Juris. 429, 432–436 (2008)Google Scholar. I propose to set aside the merits of this debate, for three reasons. First, the normativity of each of arithmetic, logic, and rationality are large and hotly contested topics. Second, as the main text indicates, there are many other counterexamples to Kramer's test. Third, the answer I eventually defend is capable of excluding standards of arithmetic and the like, if they are norms. See text at note 47, infra.

14. Shapiro, Scott J., What Is the Rule of Recognition (and Does It Exist)?, in The Rule of Recognition and the U.S. Constitution 256 (Adler, Matthew & Himma, Kenneth Einar eds., 2009)Google Scholar. For a similar proposal, see Green, L., Legal Positivism, The Stanford Encyclopedia of Philosophy (Zalta, Edward ed., Spring 2018)Google Scholar (“Moral standards, logic, mathematics, principles of statistical inference, or English grammar, though all properly applied in cases, are not themselves the law, for legal organs have applicative but not creative power over them.”).

15. Consider, for example, the practice theory of customary or social norms in H.L.A. Hart, The Concept of Law (3d ed. 2012), at 55–57, 255. I provide an account of the actions and attitudes that ground a customary or social norm in Perry, Adam, The Internal Aspect of Social Rules, 35 Oxford J. Legal Stud. 283 (2015)Google Scholar.

16. I thank an anonymous reviewer for pushing me to clarify this point.

17. Lapidoth, Ruth, International Law Within the Israel Legal System, 24 Israel L. Rev. 451, 452 (1990)Google Scholar (dating this understanding to 1951).

18. Malcolm Shaw, International Law (8th ed. 2006), at 166.

19. On “dynamic incorporation” of foreign norms generally, see Dorf, Michael, Dynamic Incorporation of Foreign Law, 157 U. Pa. L. Rev. 103 (2008)Google Scholar.

20. A possible objection goes like this: UK law confers treaty-making powers. The Treaties referred to in Section 2(1) are created (partly) under these powers. The norms created under powers conferred by the Treaties are therefore indirectly created under powers conferred by UK law. Let us grant this for the sake of argument. It would follow by Shapiro's test that treaties entered into by the UK, and relevant within UK law, are part of UK law (because such treaties would be created under powers conferred within UK law). But that is false: treaty law is not automatically incorporated into UK law. So, if the objection is incorrect, then Shapiro's test is underinclusive. If it is correct, then the test is overinclusive. I thank Jeremias Prassl for discussion on this point.

21. Case 6/64 Costa v. ENEL [1964] ECR 585, 593. For a discussion of membership of EU law within domestic law, see Dickson, Julie, How Many Legal Systems? Some Puzzles Regarding the Identity Conditions of, and Relations Between, Legal Systems in the European Union 2 Problema 9, 9–50, 31–35 (2008)Google Scholar.

22. R (Miller) v. Secretary of State for Exiting the European Union, [2017] UKSC 5, [60], [62].

23. Raz, Joseph, The Identity of a Legal System, 59 Cal. L. Rev. 795, 815 (1971)CrossRefGoogle Scholar.

24. Raz, supra note 2, at 153.

25. Id.

26. Id.

27. Keith Culver & Michael Giudice, Legality's Borders (2010), at 50.

28. R v. North and East Devon Health Authority, ex parte Coughlan, [2001] Q.B. 213 (C.A.).

29. See, e.g., Council of Civil Services Unions v. Ministers for the Civil Service, [1985] A.D. 374, 415; R v. IRC, ex parte MFK Underwriting, [1990] 1 All E.R. 91, 111. There are other possible rationales for the doctrine, but none fit well with Raz's test. See Perry, Adam & Ahmed, Farrah, The Coherence of the Doctrine of Legitimate Expectations, 73 Cambridge L.J. 61 (2014)Google Scholar.

30. Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (15th ed. 1915), at 292.

31. See, e.g., Ivor Jennings, The Law and the Constitution (1959), at 117.

32. Copyright Owners Reproduction Society Ltd v. EMI, [1958] 100 C.L.R. 597 (H.C.).

33. Geoffrey Marshall, Constitutional Conventions (1987), at 15.

34. Id.

35. Id.

36. For similar views, see Barber, N.W., Laws and Constitutional Conventions, 125 L.Q. Rev. 294 (2009)Google Scholar; Aroney, Nicolas, Laws and Conventions, in Constitutional Conventions in Westminster Systems (Galligan, Brian & Brenton, Scott eds., 2015)Google Scholar.

37. I have benefited here from Luís Duarte d'Almeida, What Is It to Apply the Law? (working paper; manuscript on file with the author); see also John Gardner, Law as a Leap of Faith (2007), at 76–77.

38. Dworkin, supra note 3, at 4.

39. See Gardner, supra note 37, at 77.

40. Joseph Raz, The Concept of a Legal System (2d ed. 1980), at 168ff, 224; Raz, supra note 2, at 117. For a similar distinction, see also Honoré, Tony, Real Laws, in Making Law Bind 69 (1987)Google Scholar.

41. Raz, supra note 2, at 117 (1990). In this quote Raz is talking about norms of a game, not a legal system, but his treatment of legal norms is very similar.

42. Blake v. Galloway, [2004] 1 WLR 2844 (EWCA).

43. Id. at [1].

44. Id. at [13].

45. Id. at [13].

46. Id. at [14].

47. This assumes, of course, that there are norms (as opposed to non-normative rules) of arithmetic, and that these are the sort of norms that can be laws. See note 13. If either assumption fails, then the conclusion—that norms of arithmetic are not local norms—still holds; only the explanation differs.

48. See Richard Fentiman, Foreign Law in English Courts (1998), at 3–4. Admittedly, conflicts-of-laws scholars tend to have in mind matters of pleading and proof.

49. Dworkin, supra note 3, at 238.

50. Id.

51. Raz, Joseph, Incorporation by Law, 10 Legal Theory 1, 12 (2004)CrossRefGoogle Scholar. The contingent differences are not, however, limited to matters of proof and pleading. For example, a common difference between a local versus an adopted norm is that local officials’ interpretations of the norm will be conclusive of its content in the first but not the second case. On this and other differences, see the helpful analysis in Clermont, supra note 2, at, 258–265.

52. That territorial limits are usually abstracted from particular norms is argued for at length in Chapter 7 of Raz, The Concept of a Legal System, supra note 40.

53. The applicability of the laws of a system is governed, in part, by its choice-of-law rules. Whether jurisdiction A will give effect to the choice-of-law rules of jurisdiction B, as well as to B's substantive rules, is part of the traditional renvoi problem, a problem resolved in many different ways.

54. Szechter v. Szechter [1971] P. 286 (HC).

55. Id. at 294–295.

56. Id. at 296.

57. Id. at 296.

58. In this case, the Polish rule happens to be indirectly relevant at a further remove compared with the English rule. If it is “one step” from a norm of English law to a conclusion about legal rights and duties within English law, then it is “two steps” from the English validity rule to such a conclusion, and “three steps” from the Polish rule. But it is not universally true that adopted rules are relevant at a further remove than local rules. Think of an English rule that defines a term used in an English rule setting out a territorial boundary: the definitional rule is at least three steps removed from any conclusion within English law.

59. Hart, supra note 15.

60. E.g., Raz, supra note 23, at 814–815; Shapiro, supra note 14. Hart eventually—and, I would say, mistakenly—accepted the criticism: Hart, H.L.A., Kelsen's Doctrine of the Unity of Law, in Ethics and Social Justice 195–196 (Kiefer, Howard & Munitz, Milton eds., 1970)Google Scholar.