Pragmatism, Positivism, and the Conventionalistic Fallacy

Abstract

Jules Coleman's "The practice of principle: in defense of a pragmatist approach to legal theory" (2001) asserts that law is a matter of social fact, and that this "social facts thesis" is central to the legal positivist tradition. This article argues that the social facts thesis, on the interpretation most naturally attributed to Coleman, is untenable, and it articulates the problem with the view in three related ways. First, it argues that the social facts thesis fails for reasons that are suggested by Dworkin's critique of Hart. Second, it explains why the problem with the social facts thesis in jurisprudence is related, in interesting ways, to Quine's critique of Carnap on the analytic/synthetic distinction in "Two Dogmas of Empiricism." Third, while some jurists have asserted that Hart's (and now Coleman's) analysis of law in terms of social facts involves the naturalistic fallacy, I shall offer a somewhat different view. I shall argue that what I call a "conventionalistic fallacy" saddles one plausible interpretation of Coleman's view, just as it did Hart's: it is the fallacy of inferring from the fact that a given rule of recognition is conventionally accepted by the legal officials of a particular legal community and the fact that a putative legal norm satisfies the rule of recognition, the legal conclusion that the putative legal norm is valid law. On the other hand, some version of a social facts thesis is tenable, I argue, and this version is enriched by Coleman's account, and is also consonant in some ways with Hart's aims. Yet this version of the social facts thesis eliminates central aspects of Coleman's positivism, and, indeed, appears to undercut his claim to being a positivist at all.