The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
We have a new article, The Official Story of the Law, forthcoming in one of the top peer-reviewed legal philosophy journals, the Oxford Journal of Legal Studies. Here is the abstract:
A legal system's 'official story' is its shared account of the law's structure and sources, which members of its legal community publicly advance and defend. In some societies, however, officials pay lip service to this shared account, while privately adhering to their own unofficial story instead. If the officials enforce some novel legal code while claiming fidelity to older doctrines, then which set of rules—if either—is the law? We defend the legal relevance of the official story, on largely Hartian grounds. Hart saw legal rules as determined by social rules accepted by a particular community. We argue that this acceptance requires no genuine normative commitment; agreement or compliance with the rules might even be feigned. And this community need not be limited to an official class, but includes all who jointly accept the rules. Having rejected these artificial limits, one can take the official story at its word.
We hope that this is both a contribution in analytic jurisprudence and in constitutional law.
As a matter of analytic jurisprudence, the piece makes two arguments furthering the basic insights of H.L.A. Hart—exploring what it is to "accept" legal rules, and the kind of community who must do the accepting. (In this vein, among other things, the piece responds to and builds on previous work in the OJLS by Mikolaj Barczentowicz and Adam Perry.)
As a matter of constitutional law, our argument responds to a recurring question about how to think about "our law" of constitutional interpretation. Suppose one thinks that judges systematically invoke one set of considerations in their official legal reasoning, while being motivated behind the scenes by something else. (For instance, one might think that courts publicly reason in terms consistent with original law originalism, while actually trying to promote some set of non-legal policy goals.) The Official Story explains why the rules of our legal system are evidenced by the former rather than the latter.