Abstract
In this article, I offer a theoretical account of a central yet surprisingly overlooked form of legal influence or control, one that I refer to as the law’s ‘exhortative’ influence. The law exercises an ‘imperative’ influence when it purports to control agents’ behavior by imposing on them legal duties to act or refrain from acting in the legally desired or repelled way. By contrast, it exercises what I call an exhortative form of influence when it aims at impacting agents’ reasons for action whilst refraining from mandating or prohibiting the legally desired or repelled conduct. The law’s exhortative control or influence must be distinguished not only from its imperative influence, but also from what I call the law’s merely ‘instructive’ form of influence, such as the one provided by so-called power-conferring laws. Though I illustrate the functioning of this special form of legal control—the law’s exhortative influence—by using primarily the example of the law of contracts, the article offers novel insights about law in general as a mode of social ordering by developing a theory of the structure of ‘legal incentives’. Legal incentives, I contend, are the means through which the law exercises its exhortative influence. Clearly distinguishing different techniques of legal influence is not only of analytical interest, but should invite us to think of accounts of the justification of legal authority that consider the similarities but also the differences in the moral significance of these diverse techniques.
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Notes
Indeed, one of the most influential contemporary account of the nature of law, Joseph Raz’s, comes primarily in the form of a theory of the nature and justification of legal authority. See e.g. Joseph Raz, The Authority of Law (2nd ed., Oxford: Oxford University Press 2009) Ch. 1; Joseph Raz, Ethics in the Public Domain: Essays in The Morality of Law and Politics (Oxford: Oxford University Press, 1994) Ch. 10; and Joseph Raz, Between Authority and Interpretation: On the Theory of Law and Practical Reason (Oxford: Oxford University Press, 2009) Ch. 5. Yet, as I hope demonstrate, the law’s authority (if understood as a normative or deontic power, namely a power to create or constitute normative or deontic requirements) can take different forms. Each of these forms is of special analytical and justificatory interest.
A preliminary clarification on this matter might be needed. The account of legal incentives I offer is meant to constitute a theoretical precisification of the notion of legal incentives and thus departs from (parts of) our ordinary thought and talk of incentives, where the term ‘legal incentive’ refers roughly to any sort of legal fact that provides motivational support to the law’s subjects behavior, including mandates, permissions, enforcement techniques, etc. As the reader will see, here we are not concerned with the notion of legal incentive in this broad sense. I will propose a theory of legal incentives that characterizes them as special techniques of legal control, namely as devices utilized by legal officials to control agents’ behavior in a way that structurally differs from mandates’ and legal instructions’. It is this peculiar form of legal (dis)incentivizing that interests us here, and it is in this sense that legal incentives can be thought of as distinctive forms or mechanisms of legal influence.
H.L.A. Hart, The Concept of Law (Oxford: Oxford University Press 1994) p. 27.
I use ‘legal duty’ and ‘legal obligation’ (and ‘duty’ and ‘obligation’ more generally) interchangeably.
On the (in this sense) categorical nature of duties see Joseph Raz, ‘Promises and Obligations’, in P. M. S. Hacker & Joseph Raz eds., Law, Morality, and Society (Oxford: Oxford University Press 1977) pp. 223–224. See also John Gardner & Timothy Macklem, ‘Reasons’ in Jules L. Coleman et al (eds.), The Oxford Handbook of Jurisprudence and Philosophy of Law (Oxford: Oxford University Press 2004) pp. 465–466. More below on the non-categorical character of legal instructions.
Or at least I will assume so here. Famously defending this claim see e.g., Hart, The Concept of Law, pp. 82–91, 216–220; and Joseph Raz, Practical Reason and Norms (Oxford: Oxford University Press 1990) pp. 154–162.
It has been standard for general theories of law to highlight, in one or another way, this aspect of contract law, see e.g., Hans Kelsen, General Theory of Law and State (New York: Routledge 2005) pp. 136–142; and Hart, The Concept of Law, pp. 27–28.
See e.g., Jean Jacques Rousseau, The Social Contract and Discourses (London: JM Dent & Sons Ltd. ed., 1913) p. 59, maintaining that ‘[in] the state of nature, where everything is common, I owe nothing to him whom I have promised nothing; I recognize as belonging to others only what is no use to me. In the state of society all rights are fixed by law, and the case becomes different’. A powerful, recent defense of the legalistic view of private law duties and rights has been articulated by Felipe Jimenez, ‘Private Law Legalism’ 74 N°4 University of Toronto Law Journal (forthcoming 2023).
This distinction assumes, of course, that we can distinguish the bindingness of contracts (i.e., their capacity to create or constitute legal and/or moral obligations) from their legal enforceability (i.e., the property of such obligations and rights which makes it the case that they merit some form of forceful execution). However, for some reason contract lawyers often fail to make this distinction. They adopt a notion of contractual obligations and rights and this leads them to holding that there is no such thing as an unenforceable contract (i.e., a contract which binds yet is not backed by a legal remedy); claim which is false. On unenforceable contracts see the Restatement (Second) of Contracts § 8; 1 Samuel Williston & Richard A. Lord, Williston on Contracts (Toronto: Thomson Reuters 2007) § 1.21, pp. 80–83.
Highlighting the dual, power-conferring/duty-imposing role of contract law see Gregory Klass, ‘Three Pictures of Contract: Duty, Power and Compound Rule’, 83 New York University Law Review (2008) p. 1726.
Making a similar point see Gardner & Macklem, ‘Reasons’, p. 465.
This doesn’t affect the claim that one may, under certain circumstances, have the normative power to liberate oneself from some duties. Such normative power to self-release, however, is not a capacity to liberate oneself by merely changing one’s goals or aims. I discuss this normative power in ‘Promises, Commitments, and the Nature of Obligation’ Journal of Ethics and Social Philosophy (forthcoming 2023).
Of course, these accounts of contract may simply not be aimed at providing theories about the distinctive role of contract law as an incentive-creating device. Yet it strikes me as natural to expect that if they claim to be offering such an account, they must explain what makes an incentive distinctively legal in kind in the first place.
Following a, I believe, widespread conceptual framework, here I understand a normative reason (i.e., a reason for action) broadly as a fact that recommend or militate in favor of an agent acting or refraining from acting in certain way. Moreover, I am assuming that legal officials can only purport to create genuine normative reasons or requirements. Whether they succeed in creating such normative requirements or reasons depends on other facts besides them intending to bring about such reasons or normative requirements. Since it is not relevant for the purposes of this essay, I will not address the question of what these additional facts may be, and thus I have been using and will continue to use expressions such as ‘the law purports to or aims at creating reasons for agents to do A’ when referring to the law’s power to create or shape our reasons for or against acting in a given way. I will assume, however, that if legal officials succeed in creating distinctively legal normative reasons it is necessarily in part because they intended to bring about these reasons. On the intentional character of legal duties, rights, and reasons see below “Legal Incentives and Intentionality” section.
Distinguishing these two forces see Thomas Pink, ‘Moral Obligation’ in A. O'Hear (ed.), Modern Moral Philosophy, Royal Institute of Philosophy Supplements (Cambridge: Cambridge University Press 2004) pp. 159–186. There are of course several accounts one may adopt on the relationship between the force of recommendation and the force of obligatoriness. Yet for our purposes here it suffices to hold that incentives constitute normative reasons that have exclusively the force of recommendation and not the force of duties or obligations, and, as we will see below, that they (unlike mere legal instructions) are categorical normative requirements.
See Oliver Wendell Holmes Jr., ‘The Path of the Law’, 10 Harvard Law Review (1897) p. 457.
And I assume that not even a radical Holmesian would maintain that it is not even possible for a law-maker to intend her directives to have an imperative rather than an exhortative, incentivizing effect; or for an agent to take such legal directive as having an imperative rather than merely incentivizing, exhortative effect on her practical deliberation.
To be sure, whether we can properly characterize this example as a case of legal incentivizing in our sense of the term will depend on the fulfilment of other requirements that I specify below in “What Makes an Incentive Legal in Kind?.” section
Restatement (Second) of Contracts § 17; § 71–81; § 90.
On the possible harmful effects associated with the enforcement of gratuitous promises see e.g., Stephen A. Smith, ‘Performance, Punishment, and The Nature of Contractual Obligation’, Modern Law Review 60 (1997) pp. 360–377; Dori Kimel, ‘The Choice of Paradigm for a Theory of Contracts: Reflections on the Relational Model’, Oxford Journal of Legal Studies 27 (2007) pp. 233–255; and Melvin Eisenberg, ‘The World of Contract and the World of Gift’, California Law Review 85 (1997) pp. 821–866.
Arguably this tradition starts with Hume. See David Hume, A Treatise of Human Nature (Oxford: Oxford University Press 1975) p. 522.
On the notion of ‘penalty’ default rule see Ian Ayres & Robert Gertner, ‘Filling Gaps in Incomplete Contracts: An Economic Theory of Default Rules’, 99 Yale Law Journal (1989) p. 87; pp. 95–108. See also Alan Schwartz & Robert Scott, ‘The Common Law of Contract and the Default Rule Project’ 102 N°6 Virginia Law Review (2016) p. 1523; pp. 1560–1566.
Contracting Without Promising (MS available upon request).
Yet see my remarks on freedom-rights below at pp. 26–27. If the law purports to influence the contracting behavior of prospective contracting parties through legal incentives, it cannot see them as possessing what below I call a freedom-right to contract. Yet in any case, I believe it is mistaken to characterize contract law in modern legal systems as establishing a freedom-right to contract, for again, the law purports to exercise its exhortative influence over prospective contractors.
I make room for other values beyond private deontic self-determination in shaping the structure of certain contractual obligations in Contracting Without Promising.
For, we may confidently assume, there is no value at all in agents being able to decide for themselves whether to unjustifiably kill someone; hence the law has no reason for refraining from mandating it.
I of course have assumed, for the sake of the argument, that citizens didn’t have a moral duty to refrain from eating red meat before the new tax law.
Put in different terms, they must have enacted a law with the aim of giving agents a non-mandatory categorical reason for Aing. Yet of course, they may have had other aims too when enacting such law.
On the intentionality of law-making see John Gardner, Law as a Leap of Faith (Oxford: Oxford University Press 2012) pp. 59–65.
What about so-called ‘customary’ law? I do not think that customary duties or rights are legal in nature until they are intentionally recognized by law-applying officials, that is, taken by them as reason for applying (intentionally created) duties or rights of the legal system, or for (intentionally) creating new legal duties or rights. Yet of course a careful exploration of the status of customary law, as of the intentional nature of law-making in general, requires a lengthier treatment that I cannot offer here. For a different take and helpful discussion of the status of customary law see Gardner, Law as a Leap of Faith, pp. 65–74.
See Raz, ‘Voluntary Obligations and Normative Powers’, at endnote 2.
And of course as a more general point, the fact that a given theory of the nature of law or an aspect of law has challenging implications for legal epistemology does not as such count as a reason against such a theory. Yet again, I do not think that intention-based theories of law-making impose any novel or unexpected challenge for legal interpreters or adjudicators, who ordinarily undertake the task of investigating legal intentions and have techniques and methods for doing so.
Raz, The Authority of Law, Ch. 2; and Gardner, Law as a Leap of Faith, Ch. 5.
See Joseph Raz, ‘The Problem of Authority: Revisiting the Service Conception’, 90 Minnesota Law Review (2006) p. 1003; pp. 1025–1026.
To be sure, what constitutes a ‘change in the law’ in a given legal system will depend, among other things, on our views about the law’s basic determinants (i.e., on our views about what makes law). The point I am stressing in the text is that the reasons that the law purports to create by exercising its exhortative influence are ‘legal’ in kind only insofar as they are brought about by a change in the law, and not through other means. And this idea, of course, is compatible with different accounts of the law’s basic determinants.
See Raz, Practical Reason and Norms, pp. 89–95, contrasting ‘weak’ permissions with what he calls ‘exclusionary permissions’.
See my remarks on contractual autonomy above at note 24.
Acknowledgements
I am grateful to David Owens, Felipe Jimenez, Sandy Steel, Henry Smith, Massimo Renzo, Ruth Chang, Felix Koch, Rebecca Stone, Sabine Tsuruda, Nico Cornell, Steve Schaus, Courtney Cox, Adam Slavny, Joaquin Reyes, Jeff Helmreich, and the organizers and participants of the Legal Theory Discussion Group at the European University Institute for their helpful comments on a previous draft out of which this article emerged. I owe special thanks to the editors and reviewers for Law and Philosophy.
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Molina, C. Exhortative Legal Influence. Law and Philos 43, 131–157 (2024). https://doi.org/10.1007/s10982-023-09482-0
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DOI: https://doi.org/10.1007/s10982-023-09482-0