Language, Legitimacy, and the Law: The Social Roots of Legal Obligation

Author

Joshua Keton, The Graduate Center, City University of New YorkFollow

Date of Degree

6-2024

Document Type

Dissertation

Degree Name

Ph.D.

Program

Philosophy

Advisor

Carol C. Gould

Committee Members

Virginia Held

Stephen Neale

Subject Categories

Ethics and Political Philosophy | Jurisprudence | Law and Philosophy | Philosophy of Language

Keywords

Jurisprudence, Public Reason, Legal Theory, Social Ontology, Judicial Review, Legal Positivism

Abstract

In a recent turn, both legal scholarship and judicial practice in the United States have converged on the idea that the content of the law is grounded on moral facts—especially facts about democracy. Leveraging insights from the philosophy of language, especially the underdetermination of meaning by syntax and semantics, I argue that textualism can only be reconstructed as a small part of a complete theory of legal interpretation. I then consider a more serious claim to the necessity of moral facts in metaphysically grounding the content of the law. As Mark Greenberg’s anti-positivist theory would have it, the content of the law is just whatever difference law practices make to our moral rights and obligations. However, noting both the controversial nature of moral facts and the poor fit between moral facts and “bad laws,” I try to construct a theory of grounding sensitive to Greenberg’s metaphysical insights while avoiding reliance on controversial moral facts. I survey work in social ontology—primarily that of Michael Bratman, Scott Shapiro, and Margaret Gilbert. Unfortunately, Bratman’s admirably conservative account of sociality as reducible purely to individual rationality lacks the resources to make sense of the law’s claim to normativity, especially its claim to issue commands, make demands, and rebuke noncompliance. Shapiro’s adaptation of Bratman’s planning theory to legal systems and large-scale social enterprises either suffers the same fate or requires the exact type of commitment to the irreducibly social that he wants to avoid. Instead, I argue that a modified account of Margaret Gilbert’s joint commitments can be adapted to capture the normativity at issue. Thus, drawing on a richer picture of sociality, I sketch an account of a legal system grounded on neither individual rationality nor general moral facts—instead, I focus on the intermediate level of what I dub “social normativity” and how it relates subjects to a legal system. I conclude by arguing that a legal system understood in terms of such normativity is under pressure to gain not just the acceptance of those subject to it but also acceptance of a particular view of authority grounded in a Rawlsian idea of public reason. I then argue that to be maximally binding, a legal system is pressured to adopt this view of its authority and institutionally foster the acceptance of those it would hold subject to its commands. To that end, I argue, contrary to much thought in both classical liberalism, legal theory, and the more recent “justificatory liberalism,” that a high court exercising the power of judicial review over a rigidly entrenched—i.e., difficult to amend—constitution threatens to undermine the ability of a legal system to maximally bind those whom it would hold subject to its authority.

Recommended Citation

Keton, Joshua, "Language, Legitimacy, and the Law: The Social Roots of Legal Obligation" (2024). CUNY Academic Works.
https://academicworks.cuny.edu/gc_etds/5785