Q&A: Inherent Authority of the Talmud by Virtue of Social Convention
Inherent Authority of the Talmud by Virtue of Social Convention
Question
You tend to say in the name of the Kesef Mishneh (at the beginning of Hilkhot Mamrim, if I remember correctly) that the Talmud has inherent authority by virtue of the fact that this is what the people accepted upon themselves.
1. The statement "the Talmud has inherent authority" sounds to me like a normative statement, and therefore why is there no naturalistic fallacy here? (: the people accepted the Talmud upon themselves (fact), and therefore the Talmud has authority (norm?))
2. This matter reminds me of what H. L. A. Hart once called the "rule of recognition." A rule of recognition makes it possible to identify the legal rules; it is a criterion for determining the legal validity of rules. It is an ultimate rule that stands at the head of the legal system. However, unlike Kelsen's basic norm, Hart argued that the rule of recognition is a social fact, and its existence is grounded in the behavioral practice of the general public and of the courts, etc.
And this is difficult for me, and likewise with the Kesef Mishneh mentioned above: why should such a convention be seen as an expression of authority or legal obligation? How do we see a behavioral practice as a reason for action, that is, as a source of legal obligation?
Answer
First, you have asked this question before in several versions and in different contexts. And I will answer you what I answered in the past as well. Norms are always derived from facts, but not from facts alone. When you say that it is forbidden to hit because it hurts, that is a correct argument, except that part of its premises is not stated explicitly (namely, that it is forbidden to cause pain). Here too, if the people accepted it upon themselves, that is binding. It is like saying that if you signed a contract, you are obligated to keep it. Here too, you derive a norm from a fact. It is simply that an additional premise is missing: that contracts or commitments must be honored.
2. The same answer. There is an implicit premise according to which what is customary in society is binding even if it was not legislated. Certainly a premise that can be debated. And perhaps it can be phrased more moderately: what is customary in society constitutes a reasonable interpretive tool for the law (and the law is what binds). That is a more plausible formulation.
Discussion on Answer
That is why I wrote that the second formulation is more plausible. When it comes to interpreting a law, it is certainly reasonable to rely on what is customary in society. A custom in and of itself is hard to see as binding law. A naturalistic fallacy.
And you do accept that assumption (that what is customary in society is binding) as correct / reasonable, right?
I ask because I read in
Andrei Marmor, "The Normativity of Law" in Stunted Encyclopedia of Philosophy
something like this:
: Explaining the rationale of legal authority, however, is not the only component of a theory about the normativity of law. If we hold the Legal Positivist thesis that low is essentially founded on social conventions another important question arises here: how can a conventional practice give rise to reasons for action and, in particular, to obligations? As Leslie Green observed, Hart’s view that the fundamental rules (of recognition) are « mere conventions » continues to sit uneasily with any notion of obligation, and this Green finds troubling, because the rules of recognition point to the sources that judges are legally bound to apply. The debate here is partly about the conventional nature of the rules of recognition, and partly about the ways in which conventions can figure in our reasons for action… Constitutive conventions, by themselves, cannot ground an obligation to engage in the practice they constitute. From a moral point of view, the rules of recognition, by themselves, cannot be regarded as sources of obligation to follow the law. Whether judges, or anybody else, should or should not respect the rules of recognition of a legal system, is basically a moral issue, that can only be resolved by moral arguments (concerning the age old issue of political obligation). And this is more generally so: the existence of a social practice, in itself, does bot provide anyone with an obligation to engage in the practice. the rules of recognition only define what the practice is, and they can say nothing on the question of whether one should or should bot engage in it.