## 1. The grounds of law




Interpretivism is a thesis about the fundamental or constitutive
explanation of legal rights and obligations (powers, privileges, and
related notions) or, for short, about *the grounds of law*. In
the relevant sense, some fact grounds another when the latter obtains
in virtue of the former; and the relation between the two facts is
explanatory in a non-causal, metaphysical sense of constitutive
determination. (See Fine 2012 and other essays in Correia and
Schnieder 2012). Consider the fact that, if you buy a mobile phone at
a store in London and it turns out to be defective, you have a right,
which is enforceable through the courts, to have it replaced or
repaired by the seller, provided the defect existed when the phone was delivered and became apparent not later than two years from delivery. In virtue of what does the right obtain? What
makes it the case, more abstractly, that any legal right or obligation
obtains? What makes the proposition that some right or obligation
exists true, if it is true? (Dworkin 1986; Stavropoulos 2017.) What sorts of nonlegal
facts do legal rights and obligations depend upon in this fundamental
way, and what is the character of the relation of dependence that
holds between legal rights and obligations and the nonlegal facts in
virtue of which they obtain? What is the order in which the relevant
factors appear within the fundamental explanation?




Legal rights and obligations vary when certain institutional and other nonmoral social facts vary; and cannot vary as long as such facts remain the same. The class of relevant facts most prominently includes *institutional practice*, the actions or practices of political institutions and ultimately the actions and psychology of the agents that operate within such institutions. You came to have the right to have the defective phone replaced or repaired by the seller and under the conditions mentioned when certain facts of this kind obtained: most directly, when the European Parliament and the Council of the EU adopted a certain Directive and the UK Parliament adapted its own legislation to give effect to it. You did't have that specific right under the specific conditions before these actions were taken, and there is no guarantee you will retain the right now that the UK has completed its withdrawal from the EU and may take unilateral action to modify or abolish it. You couldn't have come to have the right or, once you did, to lose it, unless some facts of that character obtained. Your right is therefore contingent upon and varies with the actions and practices of political institutions. The task for theories of law is to offer an account of legal rights and obligations that explains these relations. Legal positivism is an account of legal rights and obligations that appeals, at the fundamental level, exclusively to institutional and other nonmoral social considerations. Interpretivism is a kind of natural law or "nonpositivist" theory since it claims that, in addition to institutional practice (and perhaps other nonmoral social factors), certain moral facts necessarily play some role in the explanation. It makes a number of related distinctive claims within that approach.



*First*, interpretivism says that the explanation of rights and
obligations in which both moral principles and institutional practice
play some role is a kind of *interpretation*. Interpretation
in the relevant sense is the study of normatively significant objects
or of the actions of producing such objects and the practices within
such production takes place. It is a familiar point from literary and
other kinds of interpretation in the arts that an interpretation may
impute to its object a certain content that consists in or reflects
its normative significance or impact, without thereby imputing the
content to the psychology of the agent who produced the object; it is also a familiar point that an interpretation's success does not depend on such 
endorsement. In the case of law, an interpretation so understood may
correctly identify, say, the change in rights and obligations that
obtained in virtue of some enactment, even though the enactment's having
that impact was not considered and endorsed, in some specified sense,
by the enacting institution.



*Second*, interpretivism says that interpretation identifies
some moral principles which *justify*, in some specified sense,
the enactment's having the impact in question. The point
generalizes. For institutional practice as a whole, or for any individual
action or attitude or other aspect of the practice, certain moral principles
justify its having the impact on the law that it does have. The
principles thereby make it the case that it has it.



*Third*, for interpretivism, the justifying role of principles
is *fundamental*: for any legal right or obligation, some moral
principles ultimately explain how it is that institutional and other
nonmoral considerations have roles as determinants of the right or
obligation. In the order of explanation, morality comes first.




The relevant notion of justification has two aspects. First, the
principles and therefore the moral facts that they reflect give
reasons *why* any aspect of institutional practice or other
nonmoral consideration bears on legal rights and obligations. The principles therefore explain why any such consideration is
legally relevant. Second, the principles thereby determine *how* any such consideration bears on rights and obligations. An interpretivist might say that certain principles of fairness or
procedural justice give enactments some role in determining rights and
obligations. The precise role depends on the precise reasons why
enactments should have it. An appeal to principles of fair notice
might give, other things equal, a central role specifically to the plain meaning of
the text of enactments. But on the hypothesis that democratically
constituted assemblies have justified power to shape rights and
obligations as they choose, some conception of such assemblies'
linguistic intentions, or of their intention to affect the law in some
particular way by the relevant enactment, might be given priority. There may be
special cases. An interpretivist might say that, because fair notice
is essential to the permissibility of criminal punishment, criminal
statutes affect the law only as narrowly construed. An interpretivist
might further say that, in all cases, certain more specific moral
principles control "the operation and effect" of all laws
(as the *Riggs v. Palmer* court famously said, 115 NY 506
(1889)).




Similar hypotheses would be germane to cases or institutional practice
in general. For example that, because government ought to treat
morally like alike when it exercises its coercive power, judicial
decisions should stand; such that past decisions partly determine what
rights and duties now obtain in circumstances similar to those of precedent cases in their morally relevant respects. Or, more abstractly,
that, because government has a duty to bring its action under a
coherent scheme of principle when it recognizes and enforces claims
against some person, its institutional practice affects rights and
obligations as certain principles dictate: namely the principles which
together justify the practice's having that role. In
these examples, the moral facts that the principles express explain
*why* and *how* the institutional action in question affects legal rights
and duties and therefore the principles' role is to *assign* to
institutional practice, or any of its aspects, their own *role*
in the explanation.



*Fourth*, since in these explanations the mechanism, through
which institutional practice determines rights and obligations,
follows from some moral principles that give the practice that very
role, the rights and obligations so determined have genuine moral
force. For other conceptions of law, the question of the moral force
of rights and obligations in law is separate from and must come after
the question of how institutional practice constitutes them
(Stavropoulos 2012). We first ask how the practice determines rights
and obligations, which is a conceptual or otherwise nonmoral question
that aims to identify the legally relevant aspects of institutional
practice. Since our investigation is nonmoral, these must be
understood as the factors that determine the content of legal rights
and obligations, though not their force. We then ask the moral
question, left open by the initial investigation, whether rights and
obligations *so determined* truly bind. (Typically, the
question takes the form of whether we have an obligation to obey the
law.) The appropriate moral question is therefore severely constrained
by the answer to the first, nonmoral one. We should ask what would
have to be true if the institutional factors already identified as
legally relevant were to constitute genuine moral rights and
obligations. And of course there is no guarantee that what would have
to be true *would* be true as often as one might suppose, or that it
*could* be true at all. Perhaps legal rights and obligations are rarely
or never morally ratified.




This approach separates the metaphysical investigation of grounds from
the moral investigation of force. Considered from this perspective, a
moral explanation of how institutional practice determines rights and
obligations of the sort offered by interpretivism may seem to belong
in the second part of a complete account of the phenomenon of law, the
part that concerns whether legal rights and obligations, nonmorally
identified, have genuine moral force.




However, interpretivism is a thesis about the grounds of legal
obligation which purports to compete with the two-stage and other
such theses, not a thesis merely about the force of the obligations
that institutional practice constitutes in some nonmoral way. Rather,
interpretivism builds moral investigation into the metaphysical one.
The moral explanation that it offers assumes no nonmoral prior account
of grounds and leaves no residual question whether legal
obligations have moral force.




That said, there is an important distinction between two ways of
understanding the interpretivist claim that institutional practice and
moral facts both play roles in the explanation of legal rights and
obligations.




On the *first* way of understanding the claim, institutional practice
constitutes by itself part of the law; moral facts constitute by
themselves another part; and the final content of the law is some
function of the two parts. On the *second*, institutional practice is
one factor in the explanation but does not constitute any part of the
law. Rather, morality and institutional practice both figure in the
constitutive explanation of the law in the sense that the practice
determines the content of the law as certain moral facts dictate and
in virtue of those facts.




As we will see, a different version of interpretivism corresponds to
each way of reading the claim that institutional practice and morality
together ground legal rights and obligations. The first
version, *hybrid* *interpretivism*, which understands
institutional practice as an independent ground, may give rise to a
concern of moral bias in the approach to the metaphysical problem. For
it is reasonable to suspect that this kind of interpretivist sets out
with the goal of finding moral force in the law, and
the purpose of combining the institutional base with a moral overlay
is to secure such force. On the second version, *pure*
or *nonhybrid* *interpretivism*, which reflects the
second reading of the distinction, there is no scope for such
bias. For according to that version morality mandates the constitutive
role that the theory assigns to institutional practice; while there is
no nonmorally predefined route through which the practice is supposed
to determine any obligations.




It will help to develop these claims in comparison to the orthodox
view about how institutional practice affects legal rights and obligations.


## 2. The orthodox view




On the orthodox view (reflected in Hart 1994, and developed in its strongest form in Raz 1994), questions about the existence and content of legal rights and obligations are questions purely of institutional history. Legal rights and obligations are creatures of institutional action. Institutions that count as authoritative in a legal system create, modify, or extinguish a legal right or obligation primarily through communication (see e.g. Hart 1994 at 124). Institutional communication has its own logic. When an institution passes a statute or adopts a regulation, it must be understood to be conveying a norm (a standard that mandates or permits some action) or, more precisely, to be conveying the institution's intention to create, by the act of conveying the intention, a norm with the stipulated content. From the perspective of the institution, such an act of communication always has the force of a binding order that subjects are meant to obey and brings into existence a binding norm, namely that subjects ought to take the stipulated action. The norms produced by institutional communication so understood (and possibly also the norms that institutions consider and tacitly endorse in their customary practices) are valid norms of the system and make up the entire content of the law. A legal right or obligation exists when and in virtue of the fact that a norm that is part of the law so understood confers or imposes it, therefore ultimately in virtue of the fact that some institution said so. On the orthodox view, it is a basic, conceptual truth about law that institutional action determines legal rights and obligations in this way.




These considerations describe the *mechanism* through which
authoritative institutional action constitutes rights and obligations. Further
questions arise. What makes for authoritativeness in the relevant
sense (which institutions count as authoritative in the system)? How
is legal validity related to moral force?




The question which institutions count as authoritative in the system is to be settled in the first instance by other norms constituted by authoritative directive that count as more fundamental. But this kind of explanation can only go so far. To avoid regress, the question must be settled ultimately by some factor other than an authoritatively created norm. A prominent suggestion is that the factor that ultimately explains legal authority is the settled official practice of recognition of the action of certain agents or institutions as a source of norms (a practice that may be considered itself as constituting a customary norm that is tacitly endorsed in and regulates official practice and from which legal institutions ultimately derive their authority to create valid norms; Hart 1994).




On the other hand, the considerations in discussion settle the
legal *relevance* of institutional decisions: the decisions
matter to the law as institutionally valid norms that impose
obligations, which are genuine moral obligations from the point of
view of the system (Raz 1990; *contra* Hart 1982). They settle,
at the same time, *the terms* in which the further question of
the decisions' genuine normative relevance must be posed. This becomes
the question whether institutional communications work as advertised, such that they
truly create norms (norms that are valid outright, not merely
in the eyes of the institution that produced them) and therefore whether subjects do acquire an
obligation to take some action because the relevant institution said
so. In sum, the question of the genuine normative relevance of
institutional action becomes the question of whether the institutions
have legitimate authority so understood (Raz 1990). Finally, these considerations leave open the question of what moral conditions must be met for the institutions to *have* legitimate authority. This is the business of theories of justification of authority, which include theories that appeal to consent, political association, democracy, or the ability of legal authority to secure cooperation or help subjects
better conform to right reason. (For an overview,
see the entry on authority; see further Finnis
1980, 1989; Raz 1986; Dworkin 1986. Notice that on Dworkin's view
political obligation is grounded in political association. Association
generates obligations that associates owe one another, rather than an
obligation to obey authoritative directives.)




Some writers defend a less austere version of this model, by weakening
the notion of legal validity. They say that the validity of a
norm needn't depend solely on whether an
institution has conveyed the norm but may further depend on certain moral conditions, provided such conditions are laid down by more fundamental institutionally created norms. For example, if the Constitution entrenches some values, the conditions of validity of norms created by ordinary legislation would include those values. In such a case, the values
would play the crucial role only because some institution--a
constitutional assembly--said so. In another variant, values may
be made relevant to legal validity by the customary norm that governs
judicial practice, which is the most fundamental norm, constitutive of
a legal system. In that
case, the nonnormative social fact of custom that constitutes the
fundamental norm would make the values relevant to the validity of
ordinary norms (Coleman 2001a). In all these cases, rights and
obligations in law are explained ultimately by nonnormative social
facts, but moral facts occupy some place further up in the order of
explanation.


## 3. Hybrid Interpretivism



*Hybrid interpretivism* represents another possibility along
that spectrum. It begins at the austere norm-based explanation of law
but defends an even more inclusive conception. 




For hybrid interpretivism, the set of institutionally valid
norms--the norms determined by what the institutions
said--forms the interpretive baseline. Interpretation is a kind
of moral processing of these norms. To interpret is to assess the
norms constituted by institutional communication and adjust the set in
order to make it more attractive in some way--to make it better
conform to the abstract point of legal practice against which it is
interpreted. Hybrid interpretivism is therefore the thesis that the
institutional input to the interpretive process--what the
institutions said--does not alone yield the final, complete set
of legally valid norms. Rather, the final set of valid norms is the
output of the process. The final set takes as an additional input
certain moral facts. Yet the contribution of each kind of input
remains distinct. Each episode of institutional communication, by
itself, creates an institutionally valid norm which it makes available
for interpretive scrutiny. The hybrid interpretivist considers as
settled, without reference to any moral or other substantive normative
facts, how the contingencies of institutional practice contribute to
the law: he relies on the orthodox explanation of that mechanism
(cf. Raz 1986, attributing the hybrid view to Dworkin). But he thinks
that there are additional conditions of validity. Substantive
normative facts may filter, supplement, or otherwise modify the
original norms, as dictated by the interpretive goals in play. Legal
validity of a norm now entails that the norm was either created by
official communication and survived interpretive scrutiny or that it
bears a certain relation, defined by the general point of legal
practice, to such survivor norms.




One variant of hybrid interpretivism is the conception of law as
consisting of both rules and principles. This is typically attributed
to Dworkin's early work (Dworkin 1978; notice that Dworkin actually
disowns this view: 1978, at 76). Institutions convey rules, as Hart
claimed. These are screened and rejected or modified to the extent
that they conflict with certain basic moral principles of fairness or
justice, as they did in *Riggs*. Rules are also supplemented
with non-conflicting principles in hard cases, where the rules alone
yield no determinate results. In such cases, the principles fill the
gaps. The law is the hybrid of the two sets of standards generated by
the filtering and gap-filling operation.




A sophisticated variant of this view can be built around the notion of
principled consistency ("integrity") which, according to
Dworkin's later work, is a distinct political virtue that forms the
foundation of law (Dworkin 1986). Taking principled consistency in the
law as an interpretive target, the interpreter identifies a set of
principles that together justify the given set of norms. The
interpreter works therefore with two sets of norms, one composed of
norms conveyed by institutions, the other composed of uncreated,
genuine moral norms--general moral principles. He is to compare
the two sets, and adjust the first in light of the second. He may then
say that the law now includes both the original norms and the
principles (or perhaps some further norms determined by the
principles). Like its older, rules-and-principles cousin, the law is a
hybrid, a creature of the two separate sets of standards, one grounded
in social facts, the other in moral facts, that interpretation blends
together (cf. Raz 1986). (A closely related variant says that the law is simply the set of principles that best justifies the institutionally given norms or, more loosely, the legal and political practices that generate them; Greenberg 2014). 




In this operation, the principles (and the further norms that they
determine) are valid in virtue of the relation of justification they
bear to the original norms. In the presently relevant sense of
justification, an eligible principle is one that reflects an ideal
arrangement, prescinding from institutional practice, against which
norms that the practice produced are measured, provided the principle
is at least logically consistent with the norms. Consider principles
that set out the morally right way to identify and deal with private
wrongs, setting aside the actual practice of institutions in that
area. Such principles would be germane to the project of designing
institutions of tort from scratch or of reforming existing ones. But
for some principles to be said to justify some actual, institutionally
created, norms of tort, as the hybrid interpretivist says his favoured
principles do, it wouldn't be enough that the principles captured the
relevant ideals. They would further need to be at least consistent, in
some specified sense, with the norms. A principle wouldn't count as
justifying an institutionally created norm in any sense, when it
prohibited what the norm required or permitted. For any putative set of justifying principles, it's a condition of eligibility additional to and independent of merit that the principles be consistent, in some
specified sense, with the set of the original norms.




The understanding of principled consistency used in this conception of
interpretivism corresponds to one understanding of Dworkin's famous
distinction between fit and justification as dimensions of
interpretation (Dworkin 1986). Dworkin said that correct
interpretation must both fit and justify its object. On the
understanding in discussion, fit operates as a threshold constraint on
eligibility of interpretations. Independent moral appeal governs the
choice among alternatives that pass the threshold (cf. Raz
1994: 223). Fit, on this conception, is meant to ensure that a candidate interpretation
is indeed an interpretation of some object rather than an
invention. It is a nonmoral constraint, in two ways. First, it is
meant to secure consistency with a set of norms that are grounded in
nonmoral considerations--in the action and psychology of agents
and institutions. Second, the relevant notion of consistency itself is
meant to be nonmoral, a constraint of formal consistency between norms
and principles. (See Greenberg 2004 on fit as a matter of formal
consistency with practice. Greenberg argues that a constraint of
formal consistency is empty.) The thought is that the original set of
norms could not really constrain interpretation if substantive, moral
considerations played some role in determining what it is to fit the
norms. If the notion of fit were tainted by the very kind of
consideration that defines the ideals against which the actual norms
are to be measured, the distinction between interpreting the actual
practice of institutions and inventing a new, better practice would be
erased.




In order to pursue principled consistency in the law while taking the
set of institutionally created norms as the baseline, the interpreter
will have to aim at a composite objective, which can be analysed
into its components. He will have to strive for principle and for
consistency.




Some of the time, the interpreter may be able to pursue both objectives
simultaneously without difficulty. Given some principles that justify
norms in this sense, the interpreter might add to the set certain
further norms such as those implied by the explicit communication that
constitutes the original norms, if adding those norms would give better effect
to the principles and thereby improve principled consistency (on the
current understanding of that notion) in the way government treats its
citizens. Or he may add certain norms that correspond to the relevant
principles so do not conflict with the prior, institutionally
communicated norms with which by hypothesis the principles are
consistent, whether or not the new norms are implied by the
prior norms. Or (if this is different) he may add the norms that
judges are morally required to rely on in order to resolve residual
matters in domains that are only partially regulated by the original
set. In his view, the expanded rather than the original set of
standards would be valid law.




But the interpreter can't reasonably hope that his work will always be
so easy. Even assuming a fairly decent institutional history, the set
of norms that would form the baseline would be the product of
political action taken by different agents at different times, with a
variety of motives and facing different political and other
constraints in their choices (Raz 1994). The norms produced might
conflict in their justification, some consistent with one scheme but
indefensible under another. There might be no scheme of independently
appealing principles--certainly not a perfectly just and
otherwise compelling scheme--consistent with all the norms
without exception. If the baseline included a norm that couldn't be
justified by his favored scheme of principle, the interpreter might
have to try a different, less than perfect scheme, under which the
problematic norm might be subsumed, and trade merit for
consistency. But even if he were willing to accept a measure of
imperfection in a scheme's appeal, he might fail to find any eligible
scheme, in which case he would have to reject the norm. Of course, if
the communicated norms were to function as a fundamental,
pre-interpretive constraint, rejection would have to be rare and
subject to special justification. Only something about the remaining
institutional norms--that they all cohered with a given set of
principles--could allow the interpreter to reject the
outlier.


 On the other hand, there might be several mutually inconsistent
schemes of principle, each consistent with the original set of
norms. The interpreter would therefore have to choose from among these
schemes on grounds other than consistency with institutional
practice. Normally it would not be permissible, on this model, to add
a principle to the original set of norms (or to rely upon it to
generate more norms) just because it was attractive. Rather, the
principle would have to bear a relation at least of consistency with
some norm in the original set. But, in case that relation did not
uniquely determine the principles in a scheme, the interpreter would
have to choose without being able to ground the choice by appeal to
the original set. He would have to choose on merit alone. (This is a
consequence of the model that has attracted a lot of criticism. See
Raz 1994: 223-6; Finnis 1987, 1992. For Dworkin's protests that
the distinction is merely heuristic, and should not be understood to
mark two different dimensions of interpretation, see Dworkin 1982,
1986, 2006.)




A harder problem would arise where there are multiple candidate
schemes of principle that are unequal in both independent appeal and
consistency, and imperfect in each dimension. Should the interpreter
reject more of the original norms in return for an improvement in appeal, or accept a
larger compromise in appeal for a gain in consistency? At least in
some cases, where the relative gains and losses would not be
disproportionate on some conception of their magnitude, the
interpreter could not appeal to either merit or consistency to justify
a choice and it is unclear to what else he might appeal.




There are further difficulties. Hybrid interpretivism gives us no
reason to abandon a sharp distinction between the pre-interpretively
given corpus of institutionally valid norms constituted by
communication alone, on which interpretation operates, and the final
set of norms that interpretation yields. It therefore makes it seem
that the question whether the law is limited to the unprocessed input
or extends to the processed output is merely verbal (Hart
1994, Postscript;
Schauer 1996; Greenberg 2011a).




Given these problems, hybrid interpretivism makes interpretation too
close to cooking the books to make them reflect some ideal which, if left
alone, they fail. It is reasonable to take it, not as a doctrine about
what determines the content of the law, but instead as an argument
about how best to decide hard cases given the law (now understood to
be restricted to the institutionally communicated norms). It becomes a
theory of adjudication, which builds upon the orthodox explanation of
how institutional action creates rights and obligations, namely by conveying norms, and recommends some way of resolving disputes given
those norms. Even so reinterpreted, problems remain. For hybrid
interpretivism now seems to recommend that judges extend the effect of
any norms they find (or at least the ones not bad enough to fail the
test of consistency with even the least acceptable scheme of
principle) into situations the norms don't explicitly or clearly
regulate, and it's doubtful that some political ideal should support
this conservative policy (Raz 1986: 1111,
1994: 224).




The immediate source of the difficulties lies in the composite
character of the ideal of principled consistency deployed by hybrid
interpretivism, which entails that the interpreter must simultaneously
aim at consistency and merit, understood as separate targets which
needn't coincide. Given the difficulties, it is unclear that
interpretation could secure completeness, understood as the potential to
resolve all possible disputes (which is often understood to be
interpretation's further, perhaps basic objective; see Raz 1994;
Finnis 1987; see also Leiter 2007, who claims that the thesis that
there is a right answer to all legal questions is at the core of
Dworkin's project). The composite conception of principled consistency
is forced upon hybrid interpretivism by its fundamental
commitment, to which the difficulties are ultimately traced: that the
starting point of interpretation must be some norms constituted by the
contingencies of institutional communication, and that
interpretation's purpose is to compare and somehow to reconcile those
norms with ideals.




The hybrid interpretivist may claim that it is a deep constitutive
fact about law that the institutional input to the law must be
interpreted in the relevant sense. Still, his view is hybrid in that
it takes as the fundamental, pre-interpretive constituent of the law
some norm-creating acts of communication. So the basic explanation of the
legal *relevance* of political decisions--that the
decisions matter to legal rights and obligations and indeed that they
matter as such communications--is not itself interpretive in
character. The fact that, other things equal, an institution's say-so
makes law, is a primitive legal fact, or at least a legal fact that is
not to be explained by either the nature of interpretation or some
substantive interpretive conclusion in the legal domain. Hybrid
interpretivism is not therefore faithful to the basic interpretivist
idea that the legal relevance of institutional practice is
fundamentally explained by some political ideals. For example, that the fact that it's
the duty of government to treat its citizens in a manner consistent in
principle makes institutional decisions relevant to their legal
obligations, rather than supplement the decisions or filter their
results.




Before we turn to that alternative, it is worth noting that hybrid
interpretivism differs from the view, *not* similarly
unfaithful to the basic interpretivist idea, that some political ideal
(perhaps involving fair notice) makes it the case that institutional
decisions contribute to the law the norms that the decisions are widely understood to express or endorse. (An example is the doctrine Dworkin
calls "conventionalism", an interpretive conception of law
that he rejects as inferior to the conception he calls
"integrity".) For such a view, political ideals and
institutional history would together constitute the content of the law
in the right way. As a result, interpretation would be over at the
stage of identification of the norms. Hybrid interpretivism, by
contrast, takes the norms as the object of interpretation and so its
starting point, not its end.


## 4. Pure, nonhybrid interpretivism




Pure interpretivism is nonhybrid. It understands principles,
institutional practice, and their relation differently.




Interpretivism begins at the question how institutional practice bears
on rights and obligations. For hybrid interpretivism, this question
is, at least in part, pre-empted by the orthodox view on which it
builds. Recall that according to the orthodox view, the practice itself (and
ultimately the very idea of law as that is commonly understood;
cf. Raz 1986: 1114, 1994: 235 ff.) determines how the practice bears on rights
and obligations. This is so because the practice consists in
communication or tacit endorsement of norms which is meant to place subjects
under obligations just by virtue of communicating or endorsing the
norms. By taking all this as given, hybrid interpretivism
begs in some considerable part the fundamental question at which
interpretivism says one must begin.




In doing so, hybrid interpretivism commits itself to the existence of
some normative content--the norms and the obligations that follow
from them--that is constituted by institutional practice
alone. Moral principles contribute some more normative content, and
the final content imputed to the law is some combination of the
two.




By shedding the orthodox base layer of its hybrid counterpart, pure,
nonhybrid interpretivism takes no part of the basic question as
settled in that way. It therefore does not take the practice already
to contribute norms, obligations, or any other kind of normative
content, whether outright or from a point of view, or to consist in
communication that conveys or is intended to constitute normative
content. It understands the idea that the practice, nonnormatively
specified, plays a role in the fundamental explanation of the content
of the law differently: the practice is a factor in the explanation,
but does not alone constitute any content. Nonhybrid interpretivism says that moral
principles determine how the practice may determine such content.




There are several important implications. Institutional practice is
conceived in terms of actions and attitudes, not norms or communication of norms. We start at what people do and say and think. Assemblies draft, debate, amend, and
enact statutes. Agencies develop and adopt regulations. Courts
consider disputes, resolve them and issue opinions, including
dissents, which offer reasons that support resolving the disputes in
one or another way. In short, institutions and agents operating within
them take actions, including the action of producing certain texts or
utterances, and hold a variety of attitudes, whose role as
determinants of legal rights and obligations is itself determined by
the moral principles in play. The principles may assign a
certain legal significance to the fact that some assembly produced a
text with some linguistic content. It does not follow from the fact that the action of producing the text is legally relevant that the action constituted a norm with the same content. Nonhybrid interpretivism does not assume that institutional practice consists in communication of norms with its own logic that is logic of the law. It does not assume that the practice contains in itself the
particular way in which enactments or decisions "are
meant" to constitute obligations. How institutional actions
constitute obligations (the metaphysical mechanism) a matter for
theory. There is no special, privileged institutional perspective so
no internal, perspectival notion of obligation.




A further implication is that legal obligations are not constituted by
the say-so of institutions, nor are their contents determined by what
institutions said. A legal obligation need not match the content of
official language (though a variety of moral factors will often see to it that it does)
and needn't be an obligation to take action for the reason that some institution
said so. If that's obedience, legal obligation needn't be obligation
to obey.




It follows that the purpose of moral explanation is not to assess the moral force of
obligations whose content (and perspectival existence) is given in
advance of the explanation. It is to explain how obligations come to
obtain, and therefore what their content is. No prior question of
content is taken as settled, and no further question of force is left
open.




Since it competes, rather than build upon, the orthodox view that institutions communicate or
tacitly endorse norms (which thereby become legally valid), pure interpretivism has no use for
the orthodox notion of norms understood to play substantial
explanatory roles (or for a metaphysically important notion of *a* *law*,
as distinct from the informal notion that picks out statutes or other
legislation). It is not a doctrine about the conditions of validity of norms. Legal
norms (or other standards) may figure in conclusions of
reasoning that summarize the legal effect of institutional practice
and are useful for exposition. Since standards so understood
are *derived* *from* the explanation of the legal effect
of practice, their existence is
not *constitutively* *responsible* *for* the
effect. Standards may also play an epistemic role: we may draw inferences
about what rights and obligations exist from tried and tested
formulations of standards, but the inferences are always subject to
independent confirmation and the formulations are subject to revision
(Dworkin 1978: 76; Greenberg 2007; Stavropoulos 2013).




A related point concerns the structure of the explanation. On the
orthodox explanation of law, institutions issue directives each of which conveys and thereby creates a valid norm. The
impact of each individual institutional action is therefore distinct:
it is the addition of a valid norm to the law. Norms so constituted
are then weaved together to form the complete content of the
law. (This is not to deny that, on this view, some of the norms may concern precisely
how to weave norms together, for example by stipulating that *lex
posterior derogat legi priori*.) The explanation is in that sense
atomistic (Greenberg 2007). Nonhybrid interpretivism is not so
committed. Since it holds that morality determines how institutional
practice affects rights and obligations, it inherits the holistic
structure of morality: the whole of morality confronts the whole of
institutional practice and determines its effect, which interpretation
purports to identify. Particular episodes of institutional practice,
say the enactment of a new statute, change rights and obligations by
changing the content of the practice and therefore its moral effect
(Greenberg 2007, 2011a).




The notion of justification is very different on this view. Moral
facts fix the relevance of other factors. The moral principles that
reflect those facts do not add content to the law, which needs to be combined with 
content otherwise contributed by institutions. They determine which precise aspect of institutional practice is relevant to the practice's contribution to the law. The moral facts are therefore fundamental to the constitutive explanation of law, but do not directly determine its content. They determine how institutional practice determines the law.




A familiar hypothesis of that kind involves the principle that
disputes that are similar in morally relevant respects should be treated
alike. This hypothesis dictates identifying morally relevant respects
in cases, which introduces a role for further hypotheses involving
more specific principles that pick out those respects. Consider an
imaginary case, Roe v Doe, where Doe is ordered to compensate Roe for
the damage that she incurred, which was caused by Doe's action. In the
currently relevant sense, a principle, e.g., that one is responsible
for damage caused by one's carelessness on some conception of due
care, would be germane in case it identified the factor that was
relevant to Doe's liability. If it did, it would normatively explain
why Doe was ordered to pay--it would show how it's right that he
was. At the same time, the principle would determine how this decision
would bear on other cases, given the duty to treat like alike. It
would reflect the facts that ground the duty of due care and the
liability that due care entails that is articulated by the
principle. A principle that figures in such a hypothesis must, first,
justify resolving an actual or hypothetical contested case in a
particular way; and, second, justify resolving past actual or
hypothetical settled cases, i.e., cases the outcome of which is not in
dispute in the instant case, in the way they were or would have been
resolved. Hypotheses of this character have similar functions, whether
they concern the action of institutions or of litigants. By picking
out the morally relevant features of some aspect of institutional
practice, hypotheses of principle function as explanations of the
legal relevance of that aspect of the practice today.




Candidate factors are not restricted to what institutions said; nor
are they restricted to what settled legal opinion considers
relevant. Perhaps the court said that the fact that the damage was
caused by Doe's carelessness was what made him liable to pay compensation. But the court might not have said so--it might have
mentioned something else, or said some conflicting things. Or it might
have mentioned carelessness and damage, but might have failed to say whether the
magnitude and likelihood of the damage compared to the burden of
precaution were germane to the standard of care that Doe failed. Would
the fact that the court failed to mention these considerations rule
out their relevance to future cases? The answer would depend on some
further principles that explained why and how past decisions as a kind
are relevant, if they are, to instant cases. If courts should respect
their past decisions because doing so reduces uncertainty or mitigates other
costs of economic transactions, a principle that the court failed to
articulate might be irrelevant to the bearing of a case on future
cases. But if courts' responsibility is to engage with their past
decisions because they must act with integrity, such principles may be
decisive (Hershovitz 2006b).




These complications are not special to case law. A number of candidate
factors might plausibly determine a statute's effect on legal rights and
obligations. The plain meaning of the text of the statute; the actual
(linguistic) intentions of certain members or the assembly as a whole
(on some conception of corporate linguistic intention) to say or
state something by producing the text; their intentions to change
legal rights and obligations in a certain way, i.e., to secure some
legal effect by using the specific language of the statute; the effect
they would have intended to achieve if they had considered some
circumstances they did not; the effect they wanted the statute to be
regarded by the courts to have; the effect they expected it to be
regarded to have; their second-order intention that a certain
first-order intention, e.g., their linguistic intention, control the
effect of the statute; the political practices that existed before the
relevant statute was enacted and were not thought at the time and ever
since to have been affected by its enactment (Scalia
1998); the purposes the statute was formally announced to serve in its preamble
or in its sponsors' reports; the reasons given in its defense during
debates; and so on. Often all of these considerations will pull in the
same direction, so the choice among them would make no perceptible
difference. But they needn't, and we can always construct
hypotheticals to test their relative contribution to the impact that
some decision has on the law.




For pure interpretivism, interpretive hypotheses are such tests and
are designed to support the relevant theoretical choices. The
hypotheses appeal to principles of political morality that justify
some particular aspect of the institutions' action having a role as a
determinant of rights and obligations. By doing so, they aim to
establish, for each candidate determinant of law, its precise impact
on the law, including its impact when some other candidate pulls in a
different direction (cf. Dworkin 1985, 1986,
1998; Greenberg 2004; Stavropoulos 2013).




Candidate relevant factors include considerations--texts,
practices, or attitudes--that concern the very question how
candidate determinants bear on the law. Intentions about which
intentions count, mentioned above (discussed in Dworkin 1985 and 1986)
are such factors and canons or conventions of interpretation and
procedural provisions are familiar further examples. These are not
exempt from the question why and so how they should bear on the
law. Something other than the factors must determine their relevance
to the law, even when it is pre-theoretically plausible that they are
indeed relevant. For example, an interpretive convention tends to have
a significant effect on expectations about how the relevance of the
other institutional factors that the convention concerns would be
assessed in court, such that considerations of fairness favour
conforming to the convention. If so, the convention is vindicated by
considerations other than itself, and this holds for any similar
factor (see Dworkin 1985, 1986 regarding legislative intentions;
Greenberg 2004 regarding any aspect of the practice that concerns the
relevance of other aspects).




In this conception, the difficulties of hybrid interpretivism do not
arise. Principles have the role of identifying the legally relevant
aspects of institutional practice. Principled consistency in this
conception therefore consists in consistency in the morally relevant
respects of the practice. Principled consistency so understood has no
room for prior or residual concern about fidelity to the practice. The
pure interpretivist would say that, since it is not the case that we
compare moral ideals with some nonmoral code of norms constituted by
the content of institutional communication, the question does not
arise whether we ought to trade merit for consistency, to weaken our
morality to make it compatible with our history. Or whether we should
treat some ideal as a ground of obligation just because our
institutions have not clearly said anything inconsistent with
it. Since we ask in what ways institutional history is morally
relevant, the correct answer is determined by moral fact, not a moral
approximation or an ideal diluted by history. Yet the answer does not
describe ideal arrangements--those we should want to have,
prescinding from institutional history--but the normative
significance of the arrangements we do have. So we shouldn't worry
about our morality being too perfect for our history, or not as
perfect as our history might let us get away with, or about how to
choose between the two. We deploy morality, as is, not to compare it
with history but to find what difference history made.


## 5. Why does institutional practice matter?




We have been discussing the question which aspect of institutional
practice is relevant to legal rights and obligations. But how is it
that some or other aspect of institutional practice is so relevant?
The pure interpretivist case would be severely undercut if at that
abstract level morality played no role in the explanation of
relevance.




Pure interpretivism offers a thoroughly moral explanation of the
normative relevance of institutional practice, by identifying a moral
concern that gives the practice in the abstract such relevance. It characteristically
begins at some familiar, structural features of legal practice, whose
existence is usually tacitly assumed. The *first* concerns the
institutional character of law. It's an unspoken fundamental
assumption in law that claims of legal right or obligation are claims
grounded, in some appropriate way, in past institutional decisions and
standing practices of government--in actual not ideal
institutional arrangements--and that only claims so grounded
shall be recognized and enforced. Call that kind of grounding
the *legality* of a claim. The *second* concerns the
role that the legality of a claim is supposed to play in relation to
some moral concern. It is not merely uncharacteristic but also
impermissible for legal institutions to enforce some claim against a
person, unless the claim meets the conditions of legality by being
appropriately grounded in institutional practice.




This is not the discredited claim that what it is for a legal
obligation to take some action to exist is for some sanction to be
attached to not taking the action, or that a coercive clause must of
necessity be attached to every law. Rather, it is the claim that
putative rights and obligations may be enforced through the
institutions of government only when and because they bear a certain relation to
the institutions' practice. This is a normative constraint that is not
dependent on whether occasion for enforcement ever arises. It is
closer to Kelsen's view that legality is at bottom a boundary
separating permissible coercion exercised in the name of the community
and impermissible coercion not so exercised (though of course for
Kelsen this would be a moral boundary that only need exist in the eyes
of the law, whether or not it exists outright; see Kelsen 1952).




A familiar hypothesis is that the moral concern in play is raised by
institutions' effective power to use force or otherwise coercively to
direct citizens' action. Legality is supposed to constrain or regulate
that power, by constituting a necessary condition that demands against
persons must meet if they are to be permissibly enforced. Notice that
in this role, legality is not a moral filter, a moral constraint on the
validity of norms. In the hypothesis in discussion, there is no pool
of candidate norms, identified by nonmoral tests, to be put through a
further, moral test, before they are pronounced finally valid. Rather,
legality is a condition of permissible enforcement of demands against
a person, a special moral test that applies to any such demand,
including those that are entirely unfounded as well as those that may
pass other moral tests. (This is the moral concern, and corresponding
role of legality, developed in Dworkin 1986, see also Dworkin
2011. Alternative interpretivist hypotheses might assign to legality a
similarly distinctive role in relation to some *other* moral
concern.)




On this view, it is essential to law that the legality of a
demand--its being grounded in institutional history in the right
way--is a condition of its permissible enforcement. This is a
claim that is at once metaphysical--a claim about the nature of
law--and normative--a claim about the morality of
coercion. It says that the correct explanation of *why*
institutional history should have the role of constraint on coercive
enforcement (a substantive normative explanation of a political ideal
that makes history morally relevant to the permissible enforcement of
claims) determines the correct explanation of *how*
institutional history determines legal rights and obligations (the
constitutive explanation of what it is, more precisely, for a claim of
right and obligation to be grounded in institutional history in the
legally appropriate way).




This general explanatory template can be filled out in a number of
ways. The best known (Dworkin 1986, also 2006, 2011) begins at the
claim that what explains the role of institutional history in the
identification and enforcement of rights and obligations is that government's
action should be consistent in principle--some version of the
virtue of treating what's morally like alike, perhaps ultimately to be
explained by some combination of reasons of fairness and government's
special duty to treat citizens as equals.




This approach is based on the view that, emergencies aside, it is
wrong for government to exercise its power to coerce if such an
exercise is not allowed by law. Here, the law is meant to work as a
constraint on government's action, and its role as a constraint is
claimed to be grounded in reasons of political morality. (Recall that the constraint follows from moral
fact, not the logic of institutional action.) If government is to
stand behind my request coercively to enforce my demand against you,
it must justify its action by appeal to its institutional
practice. The explanation of the role of legality in the exercise of
coercive power is that government is under a standing obligation
always to act in line with an honest conception of justice. It cannot
begin to meet this obligation unless it takes what it has said and
done on pertinent issues as relevant to what it may do now. Justice is
egalitarian in character. The familiar requirement of treating morally
like alike would bind government to use force on a given occasion in
the way it has used or would use it in any other actual or
hypothetical circumstances relevantly similar to the instant one.




Principled consistency in the use of force does not mean, in this,
nonhybrid conception, that government is bound punctiliously to apply
all norms promulgated by authorities or to repeat past mistakes. The claim is rather that the
morality of coercive interaction makes institutional practice relevant
to what may or must be done now. Government must take its other action
(legislation, cases, etc.) seriously and act now in a way that's
consistent in principle with that action, taken together. Any past
action that cannot be justified under the scheme that justifies the
rest is action that is not after all relevant to what is to be done
now, and is to be set aside as mistake. We must revise our
understanding of principles on which we acted in the past, which may
have led us to such mistakes.




Since government must make its action consistent in principle (rather
than formally), the conclusion we should derive from this normative
explanation, suitably elaborated, is that certain moral principles
that together justify institutional decisions and settled practice
determine legal rights and obligations. These are moral rights and
obligations that bear the right relation to institutional practice,
which therefore government may enforce, and must do so on demand,
through its institutions (Dworkin 1986, 2011).




On this view, the morality of coercion fundamentally explains the
normative relevance of actual institutions (Stavropoulos 2009). A
related familiar hypothesis in political philosophy assigns to the
morality of coercion a fundamental role in the explanation of duties
of socioeconomic justice. On this hypothesis, duties of justice
(whether egalitarian, as many philosophers suppose, or not) obtain in
virtue of the political relation that holds among those who are placed
under the coercive control of some government, and are discharged by
designing institutions in a way that meets certain constraints (Nagel
2005). Whether or not coercion matters in that way is a topic much
discussed in political philosophy, where writers are concerned with
ideal arrangements. The question is underexplored in relation to law,
where we are concerned with the normative effect of actual
arrangements.




As indicated above, nonhybrid interpretivism is not committed as such
to appeal to egalitarian concerns related to coercive
enforcement. Alternative explanations that vindicate the assumed role
of institutional practice in grounding obligations might be built on
the basis of considerations of fair notice (cf. the doctrine Dworkin
calls "conventionalism", Dworkin 1986) or other principles of political morality, perhaps including considerations
related to authority.




A further question concerns boundaries. This is a matter of the first
importance for the orthodox view, which purports to organize
obligations by institutional source, but seems less urgent for pure
interpretivism, on which no obligations are explained by institutional
contingencies alone.




Recall that, on the current approach, some moral
concern makes institutional practice relevant to rights and
obligations, and the rights and obligations in question have genuine
moral force. But it doesn't follow that just any action of government
that has moral consequences, or even action that changes rights and
obligations, and any change in rights or obligations that obtains in
consequence of such action, is to be regarded as falling within the
legal domain. The interpretivist says that the justifying connection
between institutional practice and legal rights and obligations must
be such as to serve as an adequate response to the moral concern that
is characteristic of legal practice. On the hypothesis we have been
discussing, the concern is raised by coercive enforcement. A
conception of law must therefore articulate the relation that must
hold between some right or obligation and institutional practice if
the right or obligation is to be permissibly enforced. (Recall that
that moral relation is, on this hypothesis, the relation of legality,
and rights and duties are legal when and because they bear that
relation to institutional practice). The requirement of legality so
understood plausibly imposes procedural and other constraints on the
kind of institutional action or other aspect of institutional practice
that may ground legal rights and obligations. Officials often make
public announcements about their future behavior designed to shape the
expectations and thereby the action of their intended audience (as did
the President of the European Central Bank when he announced, at a
major investment conference organized by the British government, that
the ECB will "do whatever it takes to preserve" the
currency, Draghi 2012). Normally when we give assurances designed to
raise expectations, we thereby change what we owe to those that we
assure, often coming to have a duty to perform. But there is no reason
to expect that action of this kind, taken by officials outside normal
procedures, should in itself affect any legal right or
duty. Equally, there is no reason to rule out its playing
some role in the determination of the impact of other, procedurally
proper institutional action or other aspect of the practice.


 For similar substantive reasons, it does not follow from its
conception of legal rights and duties as moral consequences of
institutional action, that interpretivism cannot distinguish between
enforceable rights and duties that obtain in consequence of the kind
of institutional action whose role as shaper of such rights and duties
serves the value of legality, on the appropriate conception, on the
one hand; and further moral consequences, downstream of these rights
and duties, on the other. On the hypothesis in discussion, the
determination relation between rights or duties and institutional practice
allays the relevant moral concern if it makes for principled
consistency in the practice (in the way discussed in more detail in
this Section and Section 4). On this basis, we can distinguish between
the legal duty of Albert, who owns a small business, to purchase a
new, more costly health insurance program for his employees following
the enactment of some new health care legislation that specifies a
certain minimum coverage, and his further, derivative duty, owed to
his family, to reduce his personal spending to make ends meet given
the increase in his business expenditure. By hypothesis, Albert comes
to have the legal duty to purchase the new, more costly program
because, once the new legislation is factored into institutional
practice, that is what principled consistency in the practice now
dictates. On this basis, we can say that the duty obtains because of
the difference that the legislation properly made to the law. On the
other hand, Albert comes to have some duty of financial prudence
because of the effect of these developments on Albert's finances,
together with certain personal circumstances and standing obligations
that seem unrelated to the subject matter of legislation and to the
principles that govern it. On these facts, there is no reason to
suppose that this duty bears the right relation to institutional
practice, as that was changed by the legislation, which would qualify
it is as genuine legal duty whose recognition and enforcement would
serve principled consistency. We have no basis, in this case, to say
that the duty was due to the difference that the legislation properly
made to the law--though it remains possible that the effect of
the difference the legislation did make on Albert's finances might
bear on some aspect of antecedent legal rights or duties that he might
have, e.g. a duty of child maintenance.


## 6. Disagreement


 The fundamental assumption that ties enforcing rights and
obligations to institutional practice serves to fix the subject matter
of inquiry by setting the interpretive problem. Notice however that
it does not rise to a conceptual constraint as these are normally
understood. For the theory treats it as a commonly held moral
hypothesis about the normative relevance of institutional practice. As
a substantive hypothesis it is not immune to doubt but is subject to
critical scrutiny. It would remain possible coherently to reject the
assumption as mistaken, as long as an alternative hypothesis could
make intelligible other common pre-theoretical commitments. The
doctrine that Dworkin (1986) calls "pragmatism"
illustrates this possibility, since it rejects the dependence of
permissible enforcement on legality as defined above, and recommends
instead that claims of obligation be enforced when doing so is
justified by forward looking considerations. For the pragmatist, the
claims' relation to institutional practice is to be invoked merely for
strategic purposes. We might say that the assumption that connects
enforcement to institutional practice fixes but does not determine the
subject matter of legal theory. Moreover, the basic assumption does
not by itself entail an answer to the interpretive problem that it
sets. That is the problem of constitutive explanation with which we
began: how institutional practice figures in the constitutive
determination of legal rights and obligations.




This picture requires that it be possible to share a subject matter
without sharing truths that define it. Interpretivism about law
implies the possibility of disagreement about the grounds of law,
because it makes law's constitutive explanation a matter of
substance--specifically, a matter of the moral justification of
the role of institutional history in the determination of rights and
obligations. Notice that the possibility of disagreement about grounds
is implied not only by the controversial nature of morality, but
already by the substantive (therefore potentially controversial)
character of the grounds. If the question of grounds is substantive,
we can disagree about what they are without changing the
subject. Unsurprisingly, this is the issue with which Dworkin
begins *Law's Empire* (1986). 




One way to make out the possibility of disagreement about grounds that
interpretivism implies is to show that disagreement of that character
obtains. Dworkin said that disagreement about the grounds of law is
pervasive. Many of his critics objected that the kinds of disagreement
that Dworkin seemed to have in mind can be explained in a way other
than as disagreements about grounds: for example, disagreements about
the social facts that constitute legal norms, or about how to apply
the norms, or about how to decide cases where the norms run out
(therefore how to extend the law), against a background of agreement
on the grounds of law (Leiter 2003; Shapiro 2007, though not a
defender of interpretivism, finds such responses unsatisfactory).




Another strategy is to show the possibility of such disagreement
directly, by offering arguments against the view that it must be
impossible.




The first strategy is unlikely to be productive. (Notice that some
theorists nonetheless think the strategy important to the defense of
interpretivism; see Smith 2010.) The interpretivist might begin by
considering judgments about the existence of some legal
obligation. His critics will say that disagreement in such judgments
conceals agreement on grounds. The interpretivist will say that
agreement in such judgments conceals disagreement on grounds. Absent
some demonstration that actual agreements and disagreements are of one
or the other kind, it will be hard to resolve the issue. It is
possible instead to construct an inference to the best explanation of
the phenomena, and the interpretivist may press that line. However, as I
will suggest, the success of his thesis does not depend on the
outcome.




The second strategy addresses what really matters for
interpretivism. It may be that all lawyers agree on some question about the grounds of
law. That would be consistent with it being a matter of substance what
the grounds are: perhaps lawyers just happen to concur in their
judgments. What the interpretivist needs to show is that to challenge
the consensus would not be to change the subject. He needs to show
that disagreement about grounds is on the cards.




To defend the claim that disagreement about grounds is indeed
possible, one would have to resist the assumption that, as a general
matter, we can only share a subject matter by sharing truths that
define it. Indeed Dworkin, anticipating that his examples of disagreement
that appears to be about grounds would be reinterpreted by his critics
as disagreement about social facts or about how to change the law,
invited his critics not to rule out the possibility that disagreement
might be more fundamental. He said that to think that disagreement
about grounds is never possible, for the reason that to share a
subject matter we must share criteria that define it, is a
philosophical prejudice: he called the prejudice "the semantic
sting" (see Dworkin 1986).




It is now a familiar claim in general philosophy that, in the case of
certain objects and phenomena, an account of their nature is not built
into the understanding that is
sufficient for competent use of the words that refer to them (or into the understanding
of the relevant concepts that is sufficient for competent thinking). Such understanding, captured in criteria of
application and truths shared among competent users, does not provide
sufficient metaphysical guidance. In many cases, such understanding
includes an open-ended clause that allows for the existence of a
certain kind of explanation of the nature of the objects, or, at
least, that understanding does not rule out some such explanation, yet
certainly falls short of picking out any particular explanation from
among the eligible ones. In such cases, substantive investigation is
indispensable to a complete explanation of the nature of the relevant
object, and often must come first, before we realize that it is indeed
germane to the nature of the object (Kripke 1980; Burge 1986; Rey
1998; Williamson 2007; Stavropoulos 1996, 2012). 




Now if it is granted that, at least in some cases, the explanation of the nature of some
objects may turn on matters of substance, the interpretivist may
defend the view that judgments about the grounds of law are open to
challenge. For he can simply construct such a challenge explicitly as
one that disputes that the considerations that are generally regarded
to be the grounds of law are indeed such grounds (cf. Burge's strategy
in Burge 1986).




It is easy for the interpretivist to pursue that strategy. He can show
that there exist different eligible and mutually inconsistent
candidates for legal relevance. Do achievement intentions of
legislatures (intentions to change the law in a certain way) play any
role in the explanation of the impact of a statute? If so, do they
play a constitutive or merely an evidentiary role? Do expectations
that some arrangement introduced by statute will persist ever play
some role in the explanation of the statute's impact? If so, do such
expectations, even if formed in the face of explicit notice to the
contrary, prevent later legislation from radically changing the
original arrangement (cf. *National Federation of Independent
Business v. Sebelius* 567 US 519 (2012) (11-393), opinion of the
court), or is their legal relevance extinguished by the explicit
notice (cf. *National Federation of Independent Business
v. Sebelius*, Ginsburg, dissenting)? As we already saw in section
4, institutional practice includes countless examples of such
inconsistent eligible candidates, each eminently defensible as legally
relevant. But suppose that almost all lawyers agree on the relevance
of one of a pair of inconsistent candidates. The fact that they do is
yet another aspect of the practice, which is not privileged. For the
interpretivist, substantive--moral--considerations serve the
purpose of determining the relevance of any factor. On the basis of
such considerations, he can argue that the unpopular candidate is in
fact relevant so the lawyers' consensus is mistaken.




This view traces the intelligibility of fundamental challenges about
the grounds of law to unusual moral views about the legal relevance of
some factor. If this is correct, we should expect that such challenges
may occur with some regularity, and that arguments once widely
considered not colorable may come to be taken seriously and finally to
become dominant. The quick transition, from nonstarter to endorsement
by the US Supreme Court, of the view that the Constitution limits
legislative authority to regulate private civilian uses of firearms
(*District of Columbia v. Heller*, 554 US 570 (2008) (07-290)),
or of the view that the regulatory powers of the federal government do
not extend to mandating the purchase of health insurance (*National
Federation of Independent Business v. Sebelius*, cited above),
are recent illustrations.


## 7. Related theories



Interpretivism offers a moral explanation of how institutional practice shapes legal rights and obligations. It is possible to offer an alternative explanation that is moral in character, without embracing certain other claims characteristic of interpretivism. Focusing on the mechanism through which institutions can change people's normative situation, Greenberg (2014) and Hershovitz (2015) claim that legal rights and obligations are a subset of the moral rights and obligations that obtain in virtue of the actions of legal institutions. Greenberg claims that the subset is composed of those moral rights and obligations that obtain in the 'legally proper way'. Which way is legally proper is to be understood in light of a normative constraint constitutive of law: that law is supposed to improve the moral situation. When legal institutions improve the moral situation, e.g. by taking action that secures coordination, the resulting moral obligations are legal obligations. But when the actions of legal institutions give rise to obligations to resist or undo or otherwise mitigate what the institutions did (an obligation to repeal legislation, shelter the persecuted, and so on), the resulting obligations do not trace to the action of institutions in the proper way (Greenberg 2014, Schaus 2015). By contrast, Hershovitz argues that we should not be overly concerned with the boundaries of the legal. As we saw, the question about the boundaries is a matter of the first importance for theories on which legal rights and obligations are created through some special nonmnoral mechanism but need not be consequential for theories that appeal to no such mechanism (see  section 5). Developing a point from Dworkin, Hershovitz argues that the idea that there is an existing body of law, which comprises all and only those rights and obligations in force in a given system, plays no role in legal practice (Hershovitz 2015, crediting Dworkin 1978). He argues that the better view is that the practice of legal institutions has a variety of normative consequences, moral and prudential. We might use 'legal' as a label for some of those, depending on our purposes: for example, to mark the source of an obligation or the institution that gets to enforce the obligation (Hershovitz 2015).



It is common ground between these views and interpretivism that, like other contingencies, the practice of legal institutions may change rights and obligations because and to the extent that it is morally relevant. This implies that the rights and obligations so produced are ordinary, genuine moral rights and obligations. Moreover, it implies that legal institutions can exploit the fact that their action is generally morally relevant in order reliably and systematically to change what we owe to each other. While the views in discussion focus on these implications, interpretivism concentrates on the problem of identifying the content and operation of the principles that in fact make legal practice morally relevant and govern its effects on rights and obligations.