Rational determination and the prism of the first person

Thesis

In “How Facts Make Law”, Mark Greenberg argues that any plausible theory of law must meet what he calls “the rational determination requirement”. In short, this requirement supposes that any explanation of legal facts calls for a kind of interpretation of the role of institutional practice therein. Heeding this requirement will show that a full constitutive account of law includes not only social facts but also normative facts. In this thesis, I argue that we have no reason to accept Greenberg’s rational determination doctrine. I make this argument in two stages. First, I proceed by giving an account of the reasons that substantiate rational determination. Most prominently, the need for rational determination in law arises out of the arbitrariness of “brute” ontological determination. As far as brute determination is concerned, there can be endlessly different and inconsistent mappings from complete sets of law-determining facts to complete sets of legal facts, and there is nothing in the determining facts themselves to choose between one mapping or another. Since the legal domain cannot simply be brute, Greenberg argues that there must be an epistemic adequacy constraint playing a role in the metaphysical relation. This constraint is furnished by the doctrine of rational determination. According to rational determination, a given legal fact exists only insofar as it is intelligible for all rational creatures which aspects of the law practices support that legal fact and how. Second, I continue by presenting my case against rational determination. I start by making explicit what I take to be the main premise of Greenberg’s argument: as far as legal practices are concerned, it is ontologically indeterminate how they inferentially yield legal propositions. I argue that this assumption follows from Greenberg’s particular conception of legal practices as including only contents that are publicly available from the third-person perspective. My strategy consists in rejecting rational determination by offering a reductio ad absurdum of its premises: if it is true that the legal domain is indeterminate, then certain fundamental distinctions and notions we know independently to be valid from the first-person perspective would be lost. I push my case forward by challenging the assumption that legal understanding supposes drawing inferences from the more basic determining facts. I argue that the intentional structure of the legal domain is such that we can have non-inferential knowledge of legal facts. If this line of reasoning is right, then the legal domain is not indeterminate, and Greenberg’s rational determination happens to be simply the familiar underdetermination of hypothesis by empirical evidence, an ordinary epistemic problem that plays no role in the metaphysical determination relation. The conclusion is that, contrary to what contemporary interpretivism suggests, legal understanding can be explanatorily prior to interpretation.

Authors: Bullemore, T

• DOI: 10.5287/ora-jvapzjre1
• Type of award: MPhil
• Level of award: Masters
• Awarding institution: University of Oxford
• Language: English
• Keywords: legal philosophy; interpretation; interpretivism; philosophy of mind; rational determination; Mark Greenberg; social ontology; the nature of law; jurisprudence; metasemantics; legal positivism; grounding
• Subjects: Metasemantics; Legal interpretivism; Legal positivism; Legal theory; Legal interpretation; Philosophy of law; Grounding (Philosophy)