Some Claims About Law’s Claims

Abstract

Our paper has three parts. In Part 1, we discuss John Gardner’s thesis that the non-elliptical ascription of agency to law is a necessary and irreducible part of any adequate explanation of the activities of legal officials. We consider three explananda which might conceivably necessitate this ascription, and conclude that none in fact does so. In Part 2, we discuss two other theses of Gardner’s: (a) that it makes no sense to ascribe to law the claim that there are legal obligations (rights, permissions, and so on), and (b) that law’s claim is the claim that there are moral obligations (rights, permissions, and so on). We take issue with Gardner’s arguments for (a), and suggest that (b) is unwarranted in the absence of an argument that law makes any claims at all. In Part 3, we briefly argue that, insofar as it issues requirements, there are certain claims that law cannot but make. We conclude that if Gardner is right that law’s claims are those of certain of its officials, it is law-making and not law-applying officials who make law’s claim.