HOW FACTS MAKE LAW
|Mark Greenberg a1 a |
a1 University of California, Los Angeles
Nearly all philosophers of law agree that nonnormative, nonevaluative, contingent facts—descriptive
facts, for short—are among the determinants of the content of the law. In particular, ordinary empirical facts about the behavior and mental states of people such as legislators, judges, other government officials, and voters play a part in determining that content. It is highly controversial, however, whether the relevant descriptive facts, which we can call law-determining
practices, or law
practices (or simply practices) for short, are the only determinants of legal content, or whether legal content also depends on normative or evaluative facts—value
facts, for short. In fact, a central—perhaps the central—debate in the philosophy of law is a debate over whether value facts are among the determinants of the content of the law (though the debate is not usually characterized in this way).
a For helpful comments on ancient and recent predecessors of this paper, I am very grateful to Larry Alexander, Andrea Ashworth, Ruth Chang, Jules Coleman, Martin Davies, Ronald Dworkin, Gil Harman, Scott Hershovitz, Kinch Hoekstra, Harry Litman, Tim Macht, Tom Nagel, Ram Neta, Jim Pryor, Stephen Perry, Joseph Raz, Gideon Rosen, Scott Shapiro, Seana Shiffrin, Ori Simchen, Martin Stone, Enrique Villanueva, and two anonymous referees for Legal
Theory. Special thanks to Susan Hurley and Nicos Stavropoulos for many valuable discussions. I would also like to thank audiences at the University of Pennsylvania, New York University, University of California, Los Angeles, Yale University, the 2002 Annual Analytic Legal Philosophy conference, and the 2003 International Congress in Mexico City, where versions of this material were presented. Finally, I owe a great debt to the work of Ronald Dworkin.