Georgia emailed me a question that could be (somewhat uncharitably) summarized as, “WTF, bligers?” It seemed like a question that many of you are likely to have, so I want to share my response.
The context is an objection to the strong reading of the natural law thesis, the reading that says that any standard (or rule or norm) that a rational agent could not take as a guide to her conduct is not law. It’s captured in the slogan: no unjust law is a law at all. At this point in the article, Murphy has laid to rest a number of objections to this reading that claim that it is paradoxical or otherwise implausible. Now he’s considering what he thinks is a more plausible objection from Bix. Bix says, look, you’re just playing games with words when you say that a law that is accepted and enforced in a community is not legally valid because it is not moral/just/a guide to rational action and that officials who enforce it are making a mistake. “Legally valid” just means “conventionally recognized as binding,” so, of course, any law that is recognized and enforced has legal validity. Even a law like the Fugitive Slave Act, which was patently unjust, was really a law, and was legally valid.
Now, Murphy thinks this is a more interesting but still inconclusive objection to the strong reading. He’s going to argue against it by rejecting an assumption that it makes, and the “bliger” example is part of this argument. The assumption is that any successful theory of law must label as a law anything that citizens or officials of the community under examination generally agree is a law. The tale of the bligers shows that it’s possible for a theorist to both claim that the entity that the Pluralians were talking about doesn’t exist yet to make sense of their “bliger talk” insofar as it makes more sense for them to talk about bligers in the back field than unicorns in the back field. Similarly, the natural lawyer can make claim that some of the norms that a community takes to be legally valid (some of their “laws”) really are not laws, but can also give an account of why the citizens and officials were less confused in calling those things laws than in calling, say, the rules of baseball laws. If this is right, then a good theory of law need not label as law everything that citizens and officials treat as law. The judgments of citizens and officials, even their general agreement, is not authoritative; they are fallible. They are liable to treat things as law that really are not, just as the Pluralians are liable to treat things as bligers that really are not.
Finally, according to Murphy, the natural lawyer can take up this position in one of two ways. 1) They might admit that some unjust laws are laws, in a sense, but that in a more fundamental sense they are not because they cannot be rational guides to the conduct of a rational agent. The challenge for natural law theory, then, is to explain what this sense is and why it’s more fundamental. Alternatively, 2) she could claim that, even by their own lights, the citizens and officials are wrong to call these things laws, they just haven’t fully come to terms with the way they use language. They are inconsistent in some deep way. The challenge is to bring out the inconsistency. On (1), the Pluralians are right, in a sense, when they talk about bligers in the back field, but insofar as they take bligers to be single animals, they’re wrong. On (2), since it’s part of the understanding of the Pluralians that bligers are single animals, once they understand that they are built out of a number of animals, they should realize by their own lights that they were wrong to talk about bligers at all.
Georgia proposed this is a possible gloss on the argument, and I agree with her that it’s a pretty reasonable way to understand Murphy’s point:
“Things are not always what they appear, and yet we casually refer to them as X out of an improper use of language. So perhaps we might refer to something as law, out of habit but it doesn’t fit within a technical definition of law.”
I would just add that the natural law theorist’s challenge is to make sense of the technical definition and to explain to us why it is somehow more fundamental or a truer account of what law really is.