What makes norms like paying taxes, wearing a seat-belt, or being forbidden from committing murder legally valid, obligatory, or binding? On one hand, natural lawyers claim that it is justice, fairness, or some other moral standard that make them so. On the other, legal positivists claim that it is certain social facts, such as the fact that a king commanded them, that they are written in legislative statutes, that judges adjudicated thus in court, or that there exists some widely practiced custom. Can legal obligations arise from such mere social facts?
On this issue, positivists are criticized for committing Hume’s is-ought fallacy of deriving normative “ought” statements from mere descriptive “is” statements. Such a fallacy is committed, for instance, when someone claims that their friend ought to be a basketball player just because he is tall. Perhaps he would be well-suited to play given his height, but it goes too far to say he ought to; such statements just belong to entirely different logical categories. Analogously, positivists appear to be precluded from claiming that “brute” or “plain” social facts can produce legal obligations. Just as a bully cannot obligate me to surrender my lunch money just because he is capable of hurting me through sheer force, the state cannot require me to pay taxes just because it can throw me in jail. Our legal obligations must therefore be generated by something other than social facts, which means positivism is mistaken.
It might be possible to save positivism, however, by borrowing an important distinction from John Searle that enhances our understanding of what exactly social facts are. Searle distinguishes between brute facts and institutional facts. Brute facts are true independently of human opinion, such as the fact that Mount Everest has snow or the fact that hydrogen atoms have one electron. Conversely, institutional facts require human agreement to exist. Take, for instance, how a piece of paper with markings on it is a five-dollar bill, how an activity of kicking a ball up and down a field is a soccer game, or how a relationship is a marriage. The latter facts do not merely happen to exist in the world; rather, they are created and sustained by imposing what Searle calls “status functions” upon them. On this view, stones will always be stones regardless of what people believe, but money would cease functioning as a facilitator of economic transactions if everybody stopped believing it was money. Sometimes we impose status functions via explicit utterances such as when UNESCO declares that a certain park is a world heritage site. In others, the imposition is implicit, such as when a tribe builds a stone wall around its territory. Over time, the physical structure may deteriorate until nothing will remain except crumbling stones, but members and intruders alike will continue to recognize them as markers of tribal boundaries. In this scenario, the status function is no longer carried out through sheer physics, but by what philosophers call collective intentionality—the power of minds to be jointly directed at objects that makes the social world possible.
Some social facts, including the aforementioned king’s commands, legislative statutes, judicial decisions, or customary practices, can be thought of as Searlean institutional facts. They consist of a primary, lower, physical brute component at their base such as the king’s utterance, congressmen raising their hands in favor of a bill, or judges writing their decisions, and a secondary, higher, psychological component that consists of a collective imposition of a status function, such as acknowledging congressional vote as official law-making acts the results of which we are bound to obey even if we disagree with them.
It might be asked what makes the collective imposition of this status on certain human acts legally binding, and what, in turn, would make that binding, and so on. The worry is that if we cannot find some “ultimate” institutional fact, then we will be left with an infinite chain, and nothing will ground our obligations. This is a very complex question which I cannot discuss at length here, but suffice it to say that what matters for now is simply the fact that a collective imposition of the law-making status function exists. That is, what matters is the fact that society espouses a certain shared attitude with respect to obligation-generating events. In a sense, the mere existence of this fact is yet another brute fact, albeit one with a built-in psychological component. Sometimes, for one political, sociological, or economic reason or another, people just generally think alike.
The question then becomes whether this kind of particular social fact can generate legal obligations. I argue that the answer is “Yes” because the collective intentionality underpinning them produces genuine reasons for action. When institutional facts are created, a second kind of event simultaneously occurs: people commit to regarding a brute fact as an institution of a certain kind, just as when people make a promise. We view promises as committing promisors to behave a certain way independently of their motivations or desires for doing so, in part because even though they also consist of brute physical facts like utterances or handshakes, they also possess a psychological dimension: promisees modify their behavior believing in good faith that promisors will honor their word. A similar line of reasoning applies in the context of law where institutional facts are jointly created and sustained to serve valuable human purposes. Just as money was created to make trade convenient, certain events were recognized as official lawmaking events to create publicly ascertainable standards of behavior around which social life is structured. In fact, the peace, order, and predictability of social life depend on the fact that we all expect others to adhere to the same events as the official sources of law. We pay taxes, follow traffic rules, and refrain from hurting others with the expectation that others will cooperate by following the same set of rules. Once again, the example of money illuminates this point. Unless everyone agreed to count certain pieces of paper as money, those pieces of paper would be worthless. Similarly, unless everyone agreed to recognize Congress as a lawmaking body, their statutes would be invalid and inefficacious.
To illustrate this final point, I borrow Scott Shapiro’s metaphor of a plan. When people make plans together, such as when a group of friends file for leave from work to go on vacation, they make some kind of promise and form a “we-intention” to proceed only if everybody else does. They might have good individual reasons to not file for leave such as having tight work deadlines, or not liking the destination that the majority agreed to. Moreover, it is agreed that if one member backs out, then all of them will. The very existence of the plan therefore does not only depend on their mutual cooperation, but it actually gives them reasons to stick to it knowing that their friends depend on them. In this scenario, the plan itself is not binding, but the collective intentionality is.
If my argument is correct, then the social facts that make law possible are not just brute facts, and positivism can be plausibly defended against the charge of committing the is-ought fallacy. Social facts can generate obligations much like promises not because of the physical component they consist of, but because of the psychological component that transforms their original status as brute facts into that of institutional ones. It would also imply that the normativity of law is built into its nature as a social institution: it is created for various purposes, plans are made based on shared understandings of these purposes, and this social arrangement—for better or worse—gives us reasons to obey it.
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