On the Nature of Law: Philosophical Anarchism and the Function of Law

18 Pages Posted: 3 Oct 2011 Last revised: 9 Oct 2011

See all articles by Kurt Gerry

Kurt Gerry

New York University School of Law

Date Written: October 7, 2011

Abstract

In this article, I argue against a strong guidance-based conception of the function of law and in favor of a more systemic approach. This paper is part of a larger project in which I attempt to elucidate the nature of law by way of philosophical anarchism. The central claim of my approach to general jurisprudence is that approaching the fundamental issues in legal philosophy through the lens of philosophical anarchism (the proper normative response to the question of political obligation) is essential for an adequate understanding of the nature of law. For the purposes of the present paper, I thus assume that all attempts to ground a general obligation to obey the outcome of the political process fail. Contra Robert Paul Wolff, this is not an a priori claim, but a posteriori, that even if it is possible to have a moral obligation to obey political superiors, almost all people in all states throughout history never had such obligation. With this assumption in hand, I consider one important issue regarding the nature of law: law’s function. With a proper understanding of political obligation, the problem of the nature of law takes on a different form, and we can obtain a deeper understanding of law as a social practice in realizing that widely held beliefs regarding law’s guidance function are somewhat mistaken.

I argue against a popular conception that a legal rule is a thing that must be capable of guiding the conduct of those to whom it is addressed. It is often claimed that “guiding conduct” entails eliminating (at least in part) the need of the law-subject to engage in moral deliberations, that it makes a “practical difference” in one’s normative reasoning. I think this is a mistake. In light of philosophical anarchism, this account of law’s function is too narrow, for it ignores the potential ideological and manipulative uses of law, and it is often defended by an unjustifiably idealistic approach to elucidating law’s nature. I therefore argue that Scott Shapiro’s approach to the function of law and his discussion of the “practical difference thesis” are both misguided, and the function of law (or more accurately “legal system”) is at most to control behavior on a systemic level.

Keywords: Legal Philosophy, Jurisprudence, Legal Positivism

Suggested Citation

Gerry, Kurt, On the Nature of Law: Philosophical Anarchism and the Function of Law (October 7, 2011). Available at SSRN: https://ssrn.com/abstract=1937437 or http://dx.doi.org/10.2139/ssrn.1937437

Kurt Gerry (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Downloads
216
Abstract Views
1,150
Rank
263,692
PlumX Metrics