'The Disunity of Legal Reality'

David Plunkett (Dartmouth College), Daniel Wodak (University of Pennsylvania)

ABSTRACT. Take “legal reality” to refer to the part of reality that legal thought and talk is distinctively about. This includes, plausibly, things such as the following: legal institutions, legal obligations, and legal norms. In this paper, we explore the thesis that legal reality might be disunified. The basic kind of disunity we are interested in is this: an important metaphysical thesis (e.g., legal positivism, or something parallel to it) is true of one part of legal reality (e.g., legal institutions) but not another (e.g., legal norms). We explore a number of different arguments that, collectively, suggest we should take seriously the possibility that legal reality is indeed (at least relatively) disunified. One argument starts from the heterogeneity of different entities that are part of legal reality, given a range of plausible understandings of the boundaries of “legal reality”. Another argument stems from the fact that what it is to be part of “legal reality” is tied to the issue of what legal thought and talk are distinctively about. We put forward linguistic observations that suggest there might be a significant degree of variation within legal thought and talk, such that some of this thought and talk refers to things of which a given metaphysical thesis (e.g., legal positivism) is true but other parts refers to parts of reality where the same thesis (or a parallel one) fails. We argue that taking the possibility of the disunity of legal reality seriously has important upshots. First, it suggests potentially fruitful ways of combining strands of the positivist and antipositivist traditions in general jurisprudence. Second, it suggests potentially fruitful ways of combining insights from different parts of legal theory, e.g., critical legal theory and general jurisprudence. Finally, it helps us better diagnose bad forms of argument in legal theory, including some in the debate over legal positivism.