The Official Story of the Law

A new article entitled The Official Story of the Law is forthcoming in the Oxford Journal of Legal Studies, a peer-reviewed journal specializing in legal philosophy. This is the abstract.

The ‘official story of a legal system is the shared narrative of law’s structure, sources and structures that members of its legal community publically defend and advance. Officials in some societies may not be able to give lip service to the shared story, and instead prefer to tell their unofficial stories. If the officials enforce some novel legal code while claiming fidelity to older doctrines, then which set of rules—if either—is the law? The legality of the official story is defended by us on mostly Hartian grounds. Hart believed that legal rules were determined by the acceptance of social rules by one particular community. This acceptance does not require a genuine normative commitment. It could even be faked. The community is not limited to one official group. It can also include everyone who agrees with the rules. After rejecting these artificial limitations, you can accept the official story as it is.

We are hopeful that it will be both a contribution to analytic law and constitutional law.

Two arguments are made in the article to support H.L.A.’s basic insight as an analytic matter. Hart—exploring what it is to “accept” legal rules, and the kind of community who must do the accepting. The piece builds upon and responds to previous OJLS work by Adam Perry and Mikolaj Barczentowicz.

In constitutional law, the argument answers a perennial question on how to view “our law” in constitutional interpretation. Let’s say that judges invoke a particular set of factors when they are interpreting legal documents. However, behind-the scenes motivations might be something different. For example, it is possible to believe courts publically reason in ways that are consistent with the original law originalism but actually try to advance some other non-legal policies goals. The Official Story details why rules in our legal system have been shaped by the former over the latter.

Open-access should allow you to access the entire piece on the OJLS web site. It is also available on SSRN.