Flores Fabra 50th Anniversary of Harts Concep of Law
Flores Fabra 50th Anniversary of Harts Concep of Law
Flores Fabra 50th Anniversary of Harts Concep of Law
ANUARIO DE FILOSOFA
Y TEORA DEL DERECHO
5
2011
PROBLEMA
Anuario de Filosofa y Teora del Derecho
Dr. Juan Vega Gmez
Director
Asistentes de la revista
Sandra Gmora Jurez
Ricardo Reyes Mrquez
Enrique Rodrguez Trujano
Problema is a bilingual journal spanish/english that publishes papers relating to legal, political and moral philosophy.
Problema is published annually by the Philosophy of Law and
Legal Theory Department of the Legal Research Institute, at National Autonomous University of Mexico.
Email: [email protected]
DISTRIBUIDOR:
Universidad Nacional Autnoma de Mxico,
Instituto de Investigaciones Jurdicas
Coordinacin de Distribucin, Promocin y Fomento Editorial,
responsable: arquitecta Carola Lagunes.
Circuito Maestro Mario de la Cueva s/n, Ciudad de la Investigacin en
Humanidades, Ciudad Universitaria, 04510 Mxico, D. F., Tels. 5622
7474 ext. 1703, [email protected].
Editores invitados
Guest Editors
Imer B. FLORES
Legal Research Institute, UNAM
Jorge FABRA
Graduate Student, Department of Philosophy,
McMaster University
CONTENIDO
TABLE OF CONTENTS
En torno a El concepto de derecho de Hart en su cincuenta aniversario. Introduccin . . . . . . . . . . . . .
Imer B. FLORES
Jorge FABRA
50th Anniversary of Harts The Concept of Law. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . .
Imer B. FLORES
Jorge FABRA
XIII
XVII
H. L. A. Hart. . . . . . . . . . . . . . . . . . . . . . .
Matt KRAMER
11
23
CONTENIDO
The Simple and Sweet Virtues of Analysis. A Plea for
Harts Metaphilosophy of Law . . . . . . . . . . . .
Pierluigi CHIASSONI
Pulling Off the Mask of Law: A Renewed Research Agenda
for Analytical Legal Theory . . . . . . . . . . . . . .
Keith CULVER
Michael GIUDICE
Descriptive Jurisprudence . . . . . . . . . . . . . . .
Pavlos ELEFTHERIADIS
H. L. A. Harts Moderate Indeterminacy Thesis Reconsidered: In Between Scylla and Charybdis? . . . . . .
Imer B. FLORES
Are Legal Rules Content-Independent Reasons? . . . .
Noam GUR
Towards a Comprehensive Positivist Theory of Legal Obligation . . . . . . . . . . . . . . . . . . . . . . . . .
Kenneth Einar HIMMA
53
81
117
147
175
211
243
265
301
325
341
CONTENIDO
Lessons from Hart. . . . . . . . . . . . . . . . . . . .
W. J. WALUCHOW
363
385
ARTCULOS
ARTICLES
The Nature of Law and Reasons for Action . . . . . . .
Brian H. BIX
Brian Bix and Mexican Legal Philosophy: a Comment
From the Perspective of the Sociology of Knowledge .
Enrique CCERES NIETO
399
417
RESEAS
HART, H. L. A., Punishment and Responsibility. Essays in
the Philosophy of Law, 2a. ed., Oxford, Oxford University Press, 2008, liii, 277 . . . . . . . . . . . . . . .
Luis NAVARRETE
439
Autores . . . . . . . . . . . . . . . . . . . . . . . . .
471
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PROBLEMA
Anuario de Filosofa
y Teora del Derecho
Some of the ideas developed and defended in this book originated in my doctoral thesis, Adjudication and Discretion,
submitted at Oxford University. I am delighted once again to acknowledge my
overwhelming debt to Herbert Hart who
supervised the thesis and provided me
with the kind of guidance and encouragement of which doctoral students dreams
are made. Professor Hart has continued to
offer his insightful comments on my written work, and for his ongoing assistance
and generosity I am extremely grateful.
vi.
W. J. WALUCHOW
W. J. WALUCHOW
W. J. WALUCHOW
W. J. WALUCHOW
10
PROBLEMA
Anuario de Filosofa
y Teora del Derecho
H. L. A. HART
Matt KRAMER
Herbert Lionel Adolphus Hart (1907-1992) was the foremost
legal philosopher and one of the foremost political philosophers of the twentieth century. Born to a Jewish family in
Yorkshire, England, Hart pursued his undergraduate education at Oxford and went on to qualify as a barrister. After
practicing law for several years, he worked for the British
intelligence service MI5 during the Second World War.
When the War had ended, he returned to Oxford to take up
a Fellowship in Philosophy at New College. He subsequently
became Professor of Jurisprudence at Oxford (and a Fellow
of University College), and still later became Principal of
Brasenose College. During the closing years of his career as
an active scholar, he devoted much of his time to editing
and interpreting the works of Jeremy Bentham. Many former students of his, including Ronald Dworkin, Joseph
Raz, John Finnis, Neil MacCormick, Herbert Morris, and
Wilfrid Waluchow, have been among the most prominent legal philosophers of the next generation.
Hart is best known for his contributions to legal philosophy generally and to legal positivism specifically. While acknowledging his intellectual debts to his great positivist
predecessors Bentham and John Austin, he severely criticized their theories for obscuring the normative dimension
of law (that is, laws orientation toward what ought to be).
At the same time, he emphasized that the normativity of
law is not necessarily moral; throughout his jurisprudential
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MATT KRAMER
work, he maintained a legal-positivist insistence on the separability of law and morality. In his classic 1961 book The
Concept of Law, and in a number of essays written approximately contemporaneously, he presented a hugely influential account of the ways in which different types of norms
combine to form the structure of a legal system. He laid
particular stress on what he designated as the Rule of Recognition namely, the array of normative presuppositions
that underlie the behavior of legal officials (especially
judges and administrators) as they ascertain the existence
and contents of the laws in their system of governance. Under the prevailing Rule of Recognition in a jurisdiction, legal
officials are both authorized and obligated to follow specific
criteria in determining which norms possess the status of
laws. Those criteria typically fix upon familiar sources of law
such as legislative enactments or adjudicative rulings or
administrative regulations or constitutional provisions.
The Rule of Recognition is one of three main types of secondary norms, which Hart distinguished from the primary
norms of any legal system. Whereas the primary norms are
duty-imposing and liberty-conferring laws that are all directly applicable to the conduct of ordinary members of the
public, many of the secondary norms of a legal system are
juristic standards that are directly addressed to the officials
of the system only. The category of secondary norms comprises not only the Rule of Recognition, but also rules of
change (which confer private powers or public powers to alter the existing legal norms) and rules of adjudication
(which empower and obligate certain officials to deal with
actual or alleged violations of the prevailing laws). The Concept of Law presents the combination of primary laws and
secondary laws as the central structural feature of every legal system.
Hart famously distinguished between certain attitudes or
perspectives that can be adopted in relation to any pattern
of norm-guided behavior such as the operations of a system
of legal governance. A theorist who adopts an extreme ex12
H. L. A. HART
MATT KRAMER
H. L. A. HART
officials are morally benign. By contrast, Hart took the central role of jurisprudential enquiry to be theoretical-explanatory. He sought to provide a philosophical explication of
the concept of law which would comprehend all clear-cut
legal systems and which could potentially be extended to
cover all other legal systems as well. He wanted to leave
open the nature of the aims of the officials in particular legal systems, instead of focusing centrally on officials whose
motivations are benign. He recognized of course that the officials in many standard legal systems do act on the basis
of morally salutary considerations, but he endeavored to
come up with an account of law that would cover also the
standard legal systems in which the officials collectively
pursue malevolently self-interested aims. Such an account
can highlight the features of the rule of law that are common to the benevolent regimes and the malevolent regimes,
and can explore how those features are promotive of benign
ends and many malign ends. Harts theoretical-explanatory
project was thus markedly different from Finniss morally
fraught approach to jurisprudential theorizing.
In his opposition to the positions taken by Dworkin and
Finnis, and in his opposition to the positions taken by numerous other natural-law theorists such as Lon Fuller,
Hart upheld legal positivisms insistence on the separability
of law and morality. Though some subsequent legal
positivists have spoken of a separability thesis, any such
language is highly misleading. Legal positivists differ among
themselves concerning what the separability of law and morality involves, and the debates between sundry positivists
and natural-law theorists have been multifarious. The socalled separability thesis is in fact a congeries of theses.
Hart patently recognized as much, for he disentangled a
number of respects in which law and morality have been
perceived as necessarily connected. His initial concern,
which he shared with Austin, was to deny that a norm
must satisfy some threshold test of moral legitimacy if it is
to count as a genuine law. However, he then broadened the
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MATT KRAMER
H. L. A. HART
MATT KRAMER
H. L. A. HART
MATT KRAMER
H. L. A. HART
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PROBLEMA
Anuario de Filosofa
y Teora del Derecho
Resumen:
Este artculo propone una lectura de la primera edicin de El concepto de
derecho (1961), de H. L. A. Hart, en la cual se recuperan los elementos
de prescripcin moral que acompaan a la tesis descriptiva/explicativa
que Hart explcitamente defendi. De tal modo, la tesis funcionalista del
surgimiento de normas secundarias en sociedades complejas depende de
la importancia de los beneficios sociales, relacionados con la justicia y la
eficiencia, los cuales Hart suscribe. Despus se llama la atencin sobre
la forma en que el Post Scriptum a la segunda edicin de El concepto de
derecho (1994), publicado pstumamente, podra ser reescrito para tomar en cuenta respuestas a Dworkin distintas a las que ofreci el propio
Hart en su Post Scriptum. La alternativa de una forma tentativa de un positivismo jurdico prescriptivo duro conservara de mucho mejor manera los ingredientes prescriptivos que son tan evidentes en la 1a edicin, y
contribuira a la regeneracin de una filosofa del derecho analtica contempornea dentro de la tradicin hartiana.
Palabras clave:
Positivismo jurdico, jurisprudencia analtica, moral, positivismo tico, H. L. A. Hart.
* Centre for Applied Philosophy and Public Ethics, Charles Sturt University,
Australia.
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Abstract:
The article suggests a reading of the 1st edition of H. L. A. Hart, The Concept of Law (1961) which involves bringing to the fore the elements of
moral prescription which accompany the descriptive/explanatory intent
which Hart himself explicitly espouses. Thus, the functionalist account of
the emergence of secondary rules in complex societies draws on the importance of social benefits, relating to justice and efficiency, benefits which
Hart endorses. Consideration is then given to how the posthumous Postscript in the 2nd edition of The Concept of Law (1994) might be rewritten to
take into account responses to Dworkin other than those adopted by Hart
in the Postscript. The alternative of a tentative form of prescriptive hard
legal positivism would better preserve the prescriptive ingredients evident
in the 1st edition and assist in the regeneration of contemporary analytic legal philosophy within the Hartian tradition.
Keywords:
Legal Positivism, Analytical Jurisprudence, Morality, Ethical
Positivism, H. L. A. Hart.
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solving unproductive conceptual puzzles.3 Thus Hart believes that the nature of social and legal obligation can be
illuminated by attending to the difference between our use
of obliged and obligation, which points us in the direction of explaining the authority of law through the interaction of different types of social rules, such rules being
explained in part as generally observed patterns of
conduct accompanied by what may be called a supportive
internal attitude on the part of members of the society or
group in question. This is the renown model of rules that
is intended to express the conceptual cum sociological essence of all developed legal systems as involving the union
of primary rules, which apply directly to conduct of law
subjects and secondary rules, which identify, change and
direct the enforcement of first order rules.4
This model is presented as descriptive and explanatory
rather than evaluative or prescriptive. But there is, methodologically, more to Hart that this, and I am not here referring just to his general corpus much of which is clearly
morally evaluative, but to The Concept of Law itself. There is
much in the actual argumentation and presentation of that
book which can be read as involving the moral views of the
author.5 Indeed it is not difficult to discern elements of
strong normativity in Harts method, elements that contribute to the attraction and persuasiveness of his theory of
law. These normative elements are largely covert and never
pervasive, but may be perceived, nevertheless, as being operative at crucial stages of his analysis of the concept of
law.
26
27
TOM CAMPBELL
28
29
TOM CAMPBELL
12 Jules Coleman, ed., Harts Postscript: Essays on the Postscript to The Concept
of Law (Oxford, Oxford University Press 2001).
13 Although Stephen Perry comes close in discussing Hart as a methodological
positivist (Coleman, op. cit, pp. 311-354) and Liam Murphy discusses the normative reading of Hart, and concedes that Hart does draw on moral grounds to justify
some aspects of his concept of law (Coleman, op. cit., pp. 371-409).
14 Waldron, Jeremy, Kants Legal Positivism, Harvard Law Review, vol. 109,
1996, pp. 1535-66 at 1541.
30
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33
TOM CAMPBELL
Ibidem, p. 202.
34
attitudes towards their rules and adherence to them, including certain beliefs about the social utility and importance of such rules. Such beliefs not only explain why the
rules persist but provided a starting point for a discussion
of whether they ought to exist. We can accept that the beliefs and their justification are distinct without undermining the relevance of their justificatory use in deciding
whether legal systems are a good idea and in deciding what
sort of legal systems ought to be preferred.
As Hart himself makes clear in the Postscript it is, of
course, possible to describe and explain the moral judgments of others without endorsing them.19
However, the historical story is reinforced by Hart in
terms of what he sees as the uncontroversial values which
he endorses as a form of minimal natural law. Here Hart
draws on the moral convictions which most of us share20
including the protection of life, bodily security and property
rights that are required to sustain living conditions without
which a tolerable life, even life itself, could scarcely continue. The primary rules themselves that are to be found in
every society are taken to be uncontroversially justifiable if
not in every detail at least in their general thrust. At this
level sociological imperatives are not in tension with moral
ones. This broad awareness of the general aims and advan-
19 Ibidem, p. 243 (in the Postscript): Even ifthe participants internal perspective manifested in the acceptance of law as providing guides to conduct and
standards of criticism necessarily also included in a belief that there are moral reasons for conforming to laws requirements and moral justification of its use of coercion, this would also be something for a morally neutral descriptive jurisprudence
to record but not to endorse or share.
20 Hart, H. L. A., Punishment and Responsibility, Oxford, Oxford University
Press, p. 88. His methodology is set out on page 10. In relation to any social institution 1) state the general aim or value it fosters and 2) enquire after principles limiting the pursuit of that aim or value. Thus the purpose of criminal law is to prohibit
certain types of conductthe primary task of securing society from evilbut there
are limitations as to how this objective may be prosecuted. In the same book, he
notes, on p. 22, the importance in criminal law of fair opportunity and the power
to identify beforehand the particular periods when he will be free of them [sanctions].
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37
TOM CAMPBELL
38
follows that there is an internal attitude attaches to it.25 Assuming that we can accept that a rule of recognition established obligations for the officials, we can surmise that
when those officials criticise departures from that rule they
do so on the basis of their belief in the importance of the
rule, and that this belief in the importance of having a rule
is grounded in an awareness of the value of having some
sort of rule of recognition, provided it fulfils its function.
This gives further support to the idea that the theory assumes and contains the ingredients of a normative legal
positivism that commends having a rule of recognition and
by implication commends rules of recognition that satisfy
certain functional criteria relating to the effective selection
of rules for inclusion in the legal system.
Consider also Harts assumption that each legal system
has one rule of recognition.26 How does he come to that
view? It is feasible, indeed empirically established, that
judges in actual legal systems operate with a range of rules
of recognition, some giving more significance to international law, others to strict statutory construction, others to
the moral principles perceived to underlie the common law.
Yet Hart claim that there is one rule of recognition that is
the unifying feature, indeed the sovereign of each distinct
legal system.
His Postscript response to this is that each legal system
that there is general agreement on its rule of recognition.
He thinks of this as a complex empirical fact.27 Yet he did
not conduct such empirical research and his confidence in
this matter may well be due more to his sense that the effective and just functioning of a legal system depends on
there being consistency between judges with respect to
25 Ibidem, p. 146: To say that at a given time there is a rule requiring judges to
accept as law Acts of Parliament or Acts of Congress entails, first, that there is a
general compliance with this requirement and that deviation or repudiation on the
part of individual judges is rare; secondly, that when or if it occurs it is or would be
the subject of serious criticism and as wrong.
26 Ibidem, pp. 100-12, 246.
27 Ibidem (in the Postscript), p. 292.
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40
41
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42
33 Neil MacCormick, A Moralistic Case for Amoralistic Law, 20 Valparaiso University Law Review, 1985, 1-42.
34 It may be argued that Hart himself introduces a moral criterion into the rule
of recognition in the form of the Millean harm principle to the effect that the criminal law may be used to prohibit and deter individuals harming other people. But
there is no evidence that Hart saw the harm principle as a desirable candidate for a
rule of recognition. Remember, the principle says that the law may be used to prevent harm in these sense that it may not be used to prevent anything that is not
harmful to others. It does not say that causing harm to others is a sufficient basis
for rendering a type of conduct unlawful. In fact it is clear that Hart assumed that
the question of whether or not harmful behaviour warrants criminal obligations is
a matter for debate and decision within the political and ultimately the legislative
process.
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TOM CAMPBELL
46
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37 Raz, Joseph, Authority, Law and Morality, Monist, Vol. 68, 1985, p.195:
its [laws] existence and content can be identified by reference to social facts
alone, without resort to any evaluation.
38 Raz, Joseph, Between Authority and Interpretation, Oxford, Oxford University
Press, 2009, Part II.
39 See Lacey, op. cit., chapter 13.
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50
That leaves us with Dworkins semantic sting, the reductio ad absurdum of theories that seek to define law by a set
of empirical criteria. This can be dealt with briefly, for it is
clearly mistaken to apply this critique to Hart because he
was so very much against providing tight definitions to encompass complex social phenomena. Here his fascination
with Wittgensteins conception of family resemblances and
subtle differences in linguistic usage come into play. Hart
seeks to bring out the similarities and differences between,
for instance, law and morality in a fluid way. He is not interested in a definition of the term law in terms of the necessary and sufficient conditions of its use.
What then of the rule of recognition? Well, it is clear that,
for Hart, on any reasonable interpretation, rules of recognition are not definitions of law. They relate to a variety of
tests with different criteria in different jurisdictions for the
purpose of providing official determination as to which
rules are to be accepted as being laws in that jurisdiction.
By assuming that this is fulfilling the same function as a
sociologists or a philosophers definition of law Dworkin
makes, although he denies he is making, the mistake of
confusing the method of identifying a social phenomena
and the description of the content of that phenomena. Of
course Hart does use rules of recognition to determine
whether or not a mature legal system exists, but Dworkin
confuses the conceptual/sociological question of what constitutes a legal system from the quite different questions as
to what criteria judges do or should use in identifying primary laws.
IV. CONCLUSION
Why should anyone seek to rewrite the Postscript to the
2nd edition of one of the most famous legal philosophy
books of the late modern period, especially if this involves
going counter to the authors clearly stated contentions
concerning his own work? Passing by the point that the
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52
PROBLEMA
Anuario de Filosofa
y Teora del Derecho
Resumen:
El captulo 1 de El concepto de derecho plantea una cuarta cuestin fundamental, adems de las otras tres bien conocidas: a saber, la cuestin
meta-filosfica relacionada con el objeto, materia y mtodo de la teora
jurdica. El propsito de este artculo es exponer la filosofa del derecho
hartiana en su mejor versin, mediante la referencia a algunas de sus
ventajas tericas, con el fin de defenderla, en la medida de lo posible, de
algunas de las crticas formuladas por los defensores de otros enfoques
(Raz, Leiter y Dworkin).
Palabras clave:
Concepciones de la filosofa del derecho, metafilosofa del derecho, (nueva) jurisprudencia analtica, enfoque hermenutico, naturalismo, interpretativismo, H. L. A. Hart.
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Abstract:
Chapter I of The Concept of Law raises a fourth, capital, issue, besides the
three well-known ones: i.e., the meta-philosophical issue concerning the
point, the matter, and the method of legal theory. The paper purports to
present Harts philosophy of jurisprudence in its best light, also by referring to some of its theoretical pay-offs, and to defend it, so far as possible,
against a few criticisms by supporters of different outlooks (Raz, Leiter,
and Dworkin).
Keywords:
Conceptions of Jurisprudence, Metaphilosophy of Law, (New)
Analytical Jurisprudence, Hermeneutic Approach, Naturalism,
Interpretivism, H. L. A. Hart.
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Legal theory in Harts view does not exhaust jurisprudence as a general, uncompromised, label for the philosophical study of law. It is just one branch of it, side by
side to legal policy, which is concerned instead with the
criticism of law.
So conceived, legal theory and legal policy (critical jurisprudence) are in turn complementary enterprises to legal
science (doctrinal study of law), legal history (historical jurisprudence), and legal sociology (sociological jurisprudence, descriptive sociology of law).
Legal policy is a normative venture, the Hartian version of
Benthams Censorial Jurisprudence and Austins Science of
Legislation. It purports to evaluate existing legal systems,
or some parts thereof, surely from the standpoint of some
previously selected moral or political philosophy (Utilitarianism, Liberalism, Moral-Majority Perfectionism, Free-Market Darwinism, Catholic Fundamentalism, etc.), but also
from the standpoint of instrumental rationality and efficiency. Indeed, as Hart makes clear, the criticism of law
does not necessarily amount to the moral criticism of law.
Contrariwise, legal theory should stick to three basic
standards: generality, structure, and description.3
First, legal theory should be general: it should be about,
and elucidate, the law in general, namely, law as a widespread social and historical phenomenon.
Second, legal theory should be a structural inquiry about
the law: namely, it should be concerned with the conceptual apparatus and institutional arrangement common to
developed legal systems and legal cultures (the general
framework of legal thought, the distinctive structure of a
municipal legal system), not with the peculiar contents of
the legal rules of this or that legal system which is the
matter of the doctrinal study of law.
Third, legal theory should be descriptive. Hart entertains
a complex view about the standard of description, which
embraces both a negative and a positive characterization.
3
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mean by that. Going beyond truism and tautology, however, the Clarification Principle suggests to regard the law
as a linguistic phenomenon: if not strictly speaking, at least
in the looser sense of law being, in the main, a matter of
sentences, words and concepts. Such a linguistic conception of law which is fully in tune with Harts double philosophical allegiance: to Benthams analytical jurisprudence,
on the one side; to the Oxbridge ordinary language philosophy, on the other side opens the way to the second tenet
of the Hartian Model of Ordinary Analysis: the Conceptual
Analysis Principle, to which I turn now.
2.2 The Conceptual Analysis Principle
According to the Conceptual Analysis Principle, clarification of the general framework of legal thought, so as to provide an improved analysis of the distinctive structure of
municipal legal systems, requires a careful analysis of the
law-talk. This requires in turn philosophical definitions and
explanatory elucidations that must be brought about not
only by the plain, lexicographic, record of linguistic conventions, but also, as I said before, by means of a reconstructive approach including thought experiments in the way of
philosophical imagination.
The several tools Hart singles out for his Ordinary Analysis Model of legal theory are well-known. Nonetheless, they
make up a tool-box that is so sophisticated in kind and
number, to be worth of a survey.
The tools of the Hartian Model of Ordinary Analysis fall,
very roughly speaking, into three main groups of related
and conspiring items: 1) Linguistic tools; 2) Hermeneutic
tools; 3) Philosophical tools. In fact, from a genealogical
standpoint, all these tools are philosophical: they are all the
outputs of (mostly) analytical forms of philosophizing. Accordingly, the distinction I draw holds, in the main, from the
standpoint of their respective use: the analysis of natural
languages and natural discourses in view of therapeutic
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62
real essences, as legal conceptualists, like the great German jurist Rudolph von Jhering (in his first period), maintained.7 Second, stipulative concepts are neither true, nor
false, but only liable to pragmatic justification. Their value, if
any, depends on the goal(s) they are meant to serve, and on
how they have been worked out in view of those goals.
Third, theoretical concepts, like those worked out by legal
theory, are stipulative concepts informed by an overall explanatory goal.8
Hermeneutic Tools
Hermeneutic tools mirror Harts interest not only for sociology, but also, I may venture to say, for anthropological
philosophy and philosophical anthropology.9 The former
deems it worthwhile making use of anthropologists (supposed) tools and perspectives for philosophizing. The latter
assumes philosophy may help in the working out and
sharpening of tools for anthropological inquiries. At this
crossroad of perspectives and suggestions, fueled by the perennial fascination educated men feel for their primitive fellows, Hart lays down the well-known distinction between
the internal and the external point of view as to the normative system(s) of any given society. In so doing, he is careful
to reject a purely behaviouristic conception of the external
standpoint, in favour of an hermeneutic external standpoint,
where the observer does not only record the participants
non-linguistic behaviours, but also takes into account participants own norms-talk, and, what is more, puts herself in
participants shoes to see their norms and their actual
7 Hart, H. L. A., Jherings Heaven of Concepts and Modern Analytical Jurisprudence, 1970, in Id., op. cit., n. 2, pp. 265-277.
8 Hart, H. L. A., op. cit., n. 1, pp. 213-214.
9 See Hart, H. L. A., op. cit., n. 1, p. 289, where, besides P. Winch, Hart also
quotes an essay by R. Piddington on B. Malinoswkis theory of needs, and p. 291,
where works by Malinowski, A.S. Diamond, K.N. Llewellyn and W. Hoebel are
quoted.
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working as they do see them.10 The observer/user distinction is connected in turn to the key-difference, the theory of
natural languages made somehow easier to perceive, between statements about a normative system (external statements), on the one hand, and statements using a normative
system to do things like making or rejecting claims, ascribing rights, duties and responsibilities, evaluating, judging,
criticizing and justifying behaviours (internal statements), on
the other.11 In this way, the observer/user distinction
points to, and emphasizes, the epistemic value of awareness, for it prompts each of us, who are most of the time
both users and observers of normative systems, to ask at
any circumstance the capital questions: What am I doing
now?, What is she doing there?.
Philosophical Tools
Philosophical tools, the last set in the present survey of
Harts jurisprudential tool-box, mirror his deep commitment
to refounding jurisprudence as a worthwhile, sophisticated,
genuinely philosophical enterprise, not confined to the writing down some of tiresome linguistic spicilges, but providing
useful elucidations of the structure of legal thought and legal
institutions. Here, we find three leading ideas: the principle
of methodical ignorance; the antireductionism principle; the
method of philosophical imagination.
10 Hart, H. L. A., op. cit., n. 1, pp. 88 ff., 239 ff.; see also Id., Theory and Definition in Jurisprudence, in Proceedings of the Aristotelian Society, 29, 1955, pp.
247-249; Id., Essays on Bentham. Jurisprudence and Political Theory, Oxford, Great
Britain, Clarendon Press, 1982, pp. 106-161; Id., Introduction, in Hart, H. L. A.,
op. cit., n. 2, pp. 13 ff. In his Pragmatische Antropologie, Immanuel Kant draws a
like distinction between knowing the world and having use of the world: the former amounts to the knowledge of a game to which we assist; the latter amounts
instead to participating to the game (Kant, I., Antropologia dal punto di vista
pragmatico, in Id., Critica della ragion pratica e altri scritti morali, ed. by P. Chiodi,
Torino, Italia, Utet, 1970, p. 542).
11 Hart, H. L. A., op. cit., n. 10, p. 248: We can contrast the external standpoint
of the observer of a legal system who is thinking about its rules and their present
and future operation with the internal standpoint of one who is using the rules of
the system either as an official or private person in various ways; see also Id., Definition and Theory in Jurisprudence, 1953, in Hart, H. L. A., op. cit., n. 2, p. 27.
64
The principle of methodical ignorance advocated as a basic methodological tenet for jurisprudence by Bentham and
Austin is a safety device against knowledge by acquaintance. Familiarity with words and objects, far from providing deep and reliable knowledge about social phenomena, is
rather likely to lead to confusion and delusion. Accordingly,
jurisprudence must be the art of systematically ignoring
what people at large (pretend to) know, starting from peoples linguistic and conceptual certainties.12
The anti-reductionism principle is a safety device against
unwarranted theoretical reductionism. The works of many
legal philosophers exhibit the tendency to reduce the complexity of legal systems in order to show them, so far as
possible, as structurally simple phenomena, characterized
by a pleasing uniformity of pattern. Contrariwise, the
anti-reductionism principle suggests to preserve the complexity of legal systems by means of a network of adequately articulated concepts, so far as it is conceptually
warranted by functional and other practical differences.13
As I said before, Hart regards the method of philosophical
imagination as a major tool in the game of descriptive metaphysics. In Harts understanding, philosophical imagination
requires the working out of thought experiments meant to
explain how our actual conceptual and institutional structures are, and why, by comparing them with alternative
imaginary situations. Three thought experiments lay at the
core of Harts legal theory: 1) the simple model of law as coercive orders; 2) the idealized picture of a primitive, pre-legal, society ruled only by a discrete set of unconnected primary norms of obligation, somehow preluding to Nozicks
invisible-hand explanation for the rise of the state out of a
Lockean state of nature; 3) the theory of the minimum content of natural law: the empirical theory of natural law
12 Remember: In law as elsewhere, we can know and yet not understand (Hart,
H. L. A., Definition and Theory in Jurisprudence, 1953, in Hart, H. L. A., op. cit.,
n. 2, p. 21, italics added).
13 Hart, H. L. A., op. cit., n. 1, pp. 38 ff.
65
PIERLUIGI CHIASSONI
Ibidem, p. vi.
66
As Hart himself does. See, e.g., Hart, H. L. A., op. cit., n. 1, p. 155.
67
PIERLUIGI CHIASSONI
Ibidem, p. 2.
Dealing with the law and rules issue, Hart also defends a normativist conception of law (law is made of rules) against radical rule-scepticism, by resorting to
the linguistic dependence of legal rules (legal rules work like sentences in a natural
language). This view, so far as its bearing on the theory of intepretation is concerned, was criticized for overlooking the actual practice of written-law interpretation. Hart apparently accepted the criticism, conceding that interpretive methods
may make the idea of there being rules which pre-exist to their judicial application
troublesome (see Hart, H. L. A., Introduction, in Hart, H. L. A., op. cit., n. 5, pp.
8-9). In this way, however, his view about rules, and law being made of rules, becomes quite similar to Kelsens and soft realists frame-theory of rules.
16
17
68
18
19
69
PIERLUIGI CHIASSONI
70
PIERLUIGI CHIASSONI
Joseph Raz, however, objects that such a way of understanding conceptual analysis may work for the concepts of
the natural sciences, which are descriptive, explanatory
concepts, but it cannot work for social concepts, like the
concept of law, legal right, gift, property, marriage, duty,
etc. This is so, Raz claims, because social concepts are hermeneutic concepts: they are concepts we use to understand
ourselves, other people, and our position in the world. They
are not simply explanatory tools; they also contribute to
22 Bulygin, E., Raz y la teora del derecho. Comentarios sobre Puede haber
una teora del derecho? de Joseph Raz, in Raz, J., Alexy, R., Bulygin, E., Una
discusin sobre la teora del derecho, Madrid-Barcelona, Spain, Marcial Pons, 2007,
pp. 107-108.
72
73
PIERLUIGI CHIASSONI
74
PIERLUIGI CHIASSONI
76
Following these tenets, Dworkin regards it to be an obvious connection between law and morality, that when a
community decides what legal norms to create, it should be
guided and restrained by morality. He considers legal positivism and interpretivism as two theories competing to provide an answer to the same question, as rival normative
political theories. He claims, accordingly, that the best interpretation of legal positivism makes it tantamount, though
with nuances of course, to the notorious view criticized by
natural-lawyers like Radbruch: i.e., ideological positivism or
Gesetz ist Gesetz positivism.30 He suggests, furthermore,
that a legal positivist like Bentham should be regarded,
paradoxically, as a closet interpretivist.31 He seems to reject and to accept the is/ought distinction, at the same
time, apparently, on different understandings of such distinction.32 He seems to associate Hart to the jurisprudence that has traveled from some declaration about the
essence or very concept of law to theories about rights and
duties of people and officials.33
Lets go back to the hedgehog. In fact, there are many
hedgehogs around, each one knowing, by definition, just
one thing but a big one.
Now, it is unlikely that all these hedgehogs around do
know the same one big thing. Indeed, if we cast a cursory
glance at the world of jurisprudence, we see to stay with
the Anglo-American world two competing hedgehogs. The
Dworkin, R, op. cit., n. 28, pp. 409-410.
Ibidem, p. 486, fn 6.
32 One thing is the is/ought distinction within the Humean tradition sponsored
for jurisprudence by Bentham and his analytical followers; another thing is the
is/ought distinction as a distiction, within an interpretive, value-laden, committed
practice, between de iure condito (or de moribus conditis) considerations and de iure
condendo (or de moribus condendis) considerations. But Dworkin overlooks the
point, though it is crucial for understanding in which way the two-systems picture, keeping law and morality separate, is, in Hartian terms, right. See Dworkin,
R., op. cit., n. 28, pp. 407-409, and 410 ff., where he actually, though perhaps
unawarely, defends a Radbruchian two-tiered solution to the evil law puzzle similar to Gustav Radbruchs. See Radbruch, G., Statutory Lawlessness and Supra-Statutory Law, 1946, in Oxford Journal of Legal Studies, 26, 2006, pp. 1-11.
33 Dworkin, R., op. cit., n. 28, p. 407.
30
31
77
PIERLUIGI CHIASSONI
78
VIII. BIBLIOGRAPHY
AUSTIN, J., The Province of Jurisprudence Determined, 1832,
with an Introduction by H. L. A. HART, New York,
The Noonday Press, 1954.
BULYGIN, E., Raz y la teora del derecho. Comentarios sobre
Puede haber una teora del derecho? de Joseph
Raz, in RAZ, J. et al., Una discusin sobre la teora del
derecho, Madrid-Barcelona, Spain, Marcial Pons,
2007.
DWORKIN, R., Justice for Hedgehogs, Cambridge, Mass., London, England, The Belknap Press of Harvard University Press, 2011.
HART, H. L. A., Definition and Theory in Jurisprudence,
1953, in Id., Essays in Jurisprudence and Philosophy,
Oxford, Great Britain, Clarendon Press, 1983.
, Theory and Definition in Jurisprudence, in Proceedings of the Aristotelian Society, 29, 1955.
, The Concept of Law, 1961, Second edition, With a
Postscript edited by P. A. Bulloch and J. Raz, Oxford,
Great Britain, Oxford University Press, 1994.
, Jherings Heaven of Concepts and Modern Analytical
Jurisprudence, 1970, in Id., Essays in Jurisprudence
and Philosophy, Oxford, Great Britain, Clarendon
Press, 1983.
, Essays on Bentham. Jurisprudence and Political
Theory, Oxford, Great Britain, Clarendon Press,
1982.
, Introduction, 1983, in Id., Essays in Jurisprudence
and Philosophy, Oxford, Great Britain, Clarendon
Press, 1983.
, Comment, in R. Gavison (ed.), Issues in Contemporary
Legal Philosophy. The Influence of H. L. A. Hart,
Oxford, Great Britain, Clarendon Press, 1987.
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PIERLUIGI CHIASSONI
80
PROBLEMA
Anuario de Filosofa
y Teora del Derecho
Resumen:
El objetivo de este artculo es identificar y defender una parte de la renovada agenda de investigacin de la teora jurdica analtica: un renovado
enfoque relacional sobre la manera de caracterizar el concepto de derecho siguiendo la lnea trazada por Hart de investigar la relacin del derecho con la moral, la coercin y las reglas sociales. Nosotros defendemos una investigacin adicional de carcter descriptivo-explicativo sobre
la relacin que tiene el derecho con la seguridad, el medio ambiente y las
tecnologas de la informacin, en el contexto de disposiciones jurdicas
estatales y extra-estatales. Esta investigacin responde a fenmenos jurdicos recientes del modo en que fueran identificados por la tesis inter-institucional de la legalidad desarrollada en nuestro reciente libro Legalitys Borders (Oxford University Press, 2010), y asimismo responde a
los intereses y a la perspectiva de una versin modernizada del ciudadano ordinario de Hart. Un renovado enfoque relacional proporcionar
los medios para un anlisis ms profundo de las formas de legalidad que
surgen al interior y alrededor del cada vez ms inestable estado municipal, en la era moderna de una mayor interdependencia e interconexin
entre las disposiciones jurdicas estatales y extra-estatales.
Palabras clave:
Jurisprudencia analtica, teora inter-institucional del derecho, legalidad, positivismo jurdico relacional, anlisis conceptual contextualizado, ciudadano ordinario.
81
Abstract:
This article identifies and advocates one part of a renewed research
agenda for analytical legal theory: a renewed relational approach to characterization of the concept of law, following the lead set by Harts exploration of laws relation to morality, coercion, and social rules. We advocate
further descriptive-explanatory investigation of laws relation to security,
environment, and information technology, in the context of state and extra-state legal orders. This investigation is responsive to emerging legal
phenomena as identified by the inter-institutional account of legality developed in our recent book Legalitys Borders (Oxford University Press, 2010),
and is further responsive to the interests and perspective of a modernized
version of Harts ordinary citizen. A renewed relational approach will provide a means to deeper characterization of the forms of legality arising
within and around the increasingly unsteady municipal state in the modern
era of increased interdependence and interconnection amongst state and
extra-state legal orders.
Keywords:
Analytical Jurisprudence, Inter-Institutional Theory of Law, Legality, Ordinary Citizen, Relational Legal Positivism, Contextualised Conceptual Analysis.
82
SUMMARY: I. Introduction. II. Analytical Legal Theory: Functions, Methods, Objects and Evidence. III. Contextualised Conceptual Analysis. IV. Conclusion.
V. Bibliography.
I. INTRODUCTION
This article is a contribution to an unfortunately neglected
genre of analytical legal theory: sympathetic yet comprehensive renovation of its research agenda. This renovation
is motivated by the fact that analytical legal theory is in the
midst of an identity crisis or, at least according to its critics, it certainly ought to be. In the aftermath of Ronald
Dworkins celebrated response in The Model of Rules I to
Harts magisterial The Concept of Law, analytical legal theory appears to have lost track of its reason for being. The
historical task of analytical legal theory is perhaps best expressed by its most colourful forefather, Jeremy Bentham.
In a characteristically vivid use of metaphor, Bentham advises that we must draw aside that curtain of mystery
which fiction and formality have spread so extensively over
the Law and in criticism of Blackstone suggests that while
Law shews itself in a mask...this mask our author instead
of putting off has varnished.1 Bentham decried, for example, Blackstones approving report of the fiction contained
in the doctrine that there was no need to publicise widely
the acts of Parliament, since every man in England is, in
judgment of Law, party to the making of an Act of Parliament, being thereat by his representative.2 This might
make good legal sense, Bentham writes, but it is an affront
1 Bentham, Jeremy, A Comment on the Commentaries, Chap. II, s. 1 in The Collected Works of Jeremy Bentham, London, Great Britain, Clarendon Press, 1968, p.
124. This particular setting of Benthams remarks is of course used in an essay by
H. L. A. Hart, out of which some of our argument grows: The Demystification of the
Law in Essays on Bentham, Oxford, Great Britain, Clarendon Press, 1982, p. 23.
2 Bentham, Jeremy, A Fragment on Government, in Burns, J. H. and Hart, H. L.
A. (eds.), Introd. Harrison, R., Cambridge, Great Britain, Cambridge University
Press, 1998, p. 17.
83
84
Simpsons despairing picture leads us to a simple question: what next for those intrigued by analytical legal theory
yet frustrated by its offering deflections and defences rather
7 Waldron, Jeremy, Hart and the Principles of Legality, in Kramer, M. H. et.
al. (eds.), The Legacy of H. L. A. Hart: Legal, Political, and Moral Philosophy, Oxford,
Great Britain, Oxford University Press, 2008, p. 69.
8 Simpson, Brian, Herbert Hart Elucidated (2006), 104 Michigan Law Review
6, 1437-1460, pp. 1455-6.
85
than advances? One option is to adopt an entirely new research agenda, perhaps taking a direction like that pioneered by Brian Tamanaha in his socio-legal positivism.9 A
rather more promising option, we shall argue, lies in a line
of argument we began in our recent Legalitys Borders. The
inter-institutional theory of law elaborated there is an attempt to marshall overlooked insights of analytical legal
theory in support of sympathetic, yet ground-up renovation
of analytical legal theory sufficient to enable explanation of
legality in diverse forms within and beyond the state. The
argument of Legalitys Borders contributes, we believe, to
the extrication of analytical legal theory from stagnation,
and re-orientation toward pressing problems whose salience is rooted in the experience of ordinary citizens encountering diverse forms of legality in a world in which the
law-state appears prominent, yet no longer dominant. This
article continues the methodological amplification started
in Legalitys Borders, turning from the expanded range of
legal phenomena we investigated in Legalitys Borders, to
an attempt to deepen the analytical account of legality as it
is found in those diverse phenomenal contexts. Where our
inter-institutional theory was developed and deployed to
enable characterisation of prominent forms of legality in addition to the law-state, this next, complementary step is an
attempt to better understand the nature of legality in some
of those extra-state situations. This approach is not, however, straightforwardly a continued investigation of intrastate, trans-state, supra-state, and super-state legal phenomena.10 Rather, it is an attempt to deepen understanding
of prominent manifestations of legality, in whatever state or
non-state form they occur, by expansion of an approach begun by Hart, yet left behind as enthusiasms led elsewhere.
What has been called Harts relational approach to the
9 Tamanaha, Brian, Socio-Legal Positivism and A General Jurisprudence
(2001), 21 Oxford Journal of Legal Studies 1, 1-32.
10 See Culver, Keith, and Giudice, Michael, Legalitys Borders, New York,
United States, Oxford University Press, 2010, pp. 148-171.
86
88
89
90
91
93
law delivered by analytical legal theory and its interlocutors. Dworkins Hercules,17 and Jules Colemans recent development of the Swede,18 seem to resemble more closely
the kind of official envisioned in the Icelandic sagas than
the diverse range of officials evident in modern municipal
systems of law. Both Dworkins Hercules and Colemans
Swede function as model authorities at a crucial nexus
point, Dworkins in the context of a court, and Colemans
as a kind of special epistemic authority regarding the identity of legal norms in a system which is not the object of the
Swedes normative allegiance. These choices of illustrative
character each refer to a nexus point of testing for normative authority which is under threat by empirical change
from within the fragile borders of discrete municipal systems, and from without. As William Twining has argued,
globalisation and interdependence challenge black box
theories that treat nation states or societies or legal systems as discrete, impervious entities that can be studied in
isolation either internally or externally.19 Familiar examples of penetration of municipal legal systems can be seen
in the effect of international trade law on domestic legal
practices, and the demands placed on states by international law-governed human rights violations in other states.
Recently, the collapse of state isolation was illustrated in
the conduct of the United States, the global leviathan historically tempted toward an isolationist stance. The BBC
World Service reported that freshly declassified US documents show that senior American officials were warned in
plain terms of impending genocide in Rwanda, yet chose
nonetheless to vote with the remainder of the UN Security
17 Dworkins fictional judge of superhuman powers is most prominently used in
his Laws Empire, Cambridge, Massachusetts, Belknap Press of Harvard University
Press, 1986.
18 Coleman, Jules, The Practice of Principle, Oxford, Great Britain, Oxford University Press, 2001.
19 Twining, William, Globalisation and the Legal Theory, London, Great Britain,
Butterworths, 2000, p. 51. See also Twining, William, General Jurisprudence: Understanding Law from a Global Perspective, Cambridge, Great Britain, Cambridge
University Press, 2009.
94
95
96
gation of law and social rules and morality, there is still the
stasis observed by Green with respect to coercion, and
worse yet, as Green writes, What we have not had is convergence.23 The absence of convergence in investigation of
social rules, morality and coercion is particularly troubling
in light of the contingent relevance of these relations to an
understanding of law satisfactory to inquirers interests.
The relation of law to those particular relations was judged
important by Hart in his deepening of a picture of those
features of legality particularly salient to ordinary citizens.
We have already suggested that Hart might have chosen
other relations to investigate, and in other work did so.
What does it say about the progress of analytical jurisprudence that it has made little headway toward an integrated
picture of just three of the contingent relations relevant to a
citizen whose interests may well change? As we suggested
in Legalitys Borders, we would do well to conduct legal theory from the perspective and interests of the ordinary citizen who travels in a globalizing world whose effects are felt
at home and when travelling. The interests of that citizen
are at best partially satisfied by the partial advances of Hercules, the Swede and friends in a subset of the relations between legality and its wider social context. The citizen of Legalitys Borders demands more: a wider relational approach,
with better integration, resulting in a concept of law whose
claim to be descriptive-explanatory is grounded in a clear
account of the responsiveness the theory owes to social evidence, and fidelity to its goal of clarification such that practicality, normativity, and comprehensiveness demands can
each be given their proper space and no more. In a phrase,
the ordinary citizen of the 21st century demands a
contextualised conceptual analysis whose deployment of
Harts relational approach renews analytical jurisprudence
in a way which overcomes its narrowness and overbreadth
while acknowledging the limits of analytical jurisprudence
23
97
alytical legal theory. It will be useful to approach that discussion via further consideration of the sense in which
contextualised conceptual analysis is historically sensitive
and self-consciously a partial contribution to the broadest
possible picture of legality, by way of beginning to respond
to the problem of unselfconscious abstractness evident in
analytical legal theory to date.
3.1 History
Analytical jurisprudence has long attempted to take history seriously in various ways, but those attempts have
been arguably unselfconscious: history has mattered as an
input to jurisprudential reasoning, not as an aspect of it.
We propose a broader role for history in contextualised conceptual analysis, understanding that the concept of law
and subordinate concepts have a more than etymological
history, and that this history matters to the way we understand them now, particularly when aiming at something
like a universal concept of law applicable to all societies at
all times. Let us explain this claim in situ. One of the problems which has vexed analytical legal philosophy is understanding of the nature of legal obligation how laws obligate, why subjects obey laws, and so forth. A typical
analytical approach to the question of the nature of legal
obligation is to examine first the meaning of obligation, and
then to rely on that rich understanding of the meaning of
the concept to try to understand the place of that concept
in the surrounding web of legal concepts such as duty and
permission. Lon Fuller, for example, writes of fidelity to law
as a kind of translation of the attitude of acceptance of law,
and builds the notion of faith, the Latin fide, into the account of how law presents itself to subjects in a way which
secures their acceptance.24 Hart contributes the observation
that obligation seems to have its roots in the Latin ligare,
24 Fuller, Lon, The Morality of Law, 2nd edn., New Haven, United States, Yale
University Press, 1969, pp. 38-41.
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101
102
104
paniment to normatively committed and social scientific investigations of law. Unsurprisingly, then, given the
emergent, reconstructed character of this clarificatory concept, it is not the only one. It is the particular result of one
method calculated to reveal law as it is for the sake of the
ordinary citizen who travels, pulling off the mask of law not
by being practical or comprehensive, but by filling the gap
between practically oriented, often judicially-focussed legal
philosophy, and general accounts of the logic of norms.
Contextualised conceptual analysis is then truly a middle
way, its virtues identifiable only through its co-operation
with accompanying investigations. It is nonetheless a powerful middle way, since it opens the possibility of analytical
legal philosophy coming to terms with changes in social life
judged by our observers perspective in a world where the
importance of laws morality, social rules, and coercion is
changed, and changing. In the pluralist world inhabited by
our citizen who travels, laws relation to morality is far more
varied and complex than the relation claimed by Lord
Devlin in the Hart-Devlin debate as he celebratedly claimed
that a sense of sin in a society where morality and religion
are conjoined is essential to effective administration of
criminal law.32 The social rules to which our ordinary citizen is subject may be no more logically complex than those
of Harts generation, but the diversity of their sources and
their force is ever-more bewildering in the globalizing world.
And while the relation between law and coercion remains of
fundamental interest as a persistent question, the way in
which the ordinary citizen experiences this question has
likely changed, as our citizens mobility enables both
evasion and sudden meetings with coercion.
32 As a judge who administers the criminal law and who has often to pass sentence in a criminal court, I should feel handicapped in my task if I thought that I
was addressing an audience which had no sense of sin or which thought of crime
as something quite different. Devlin, Patrick, The Enforcement of Morals, Oxford,
Great Britain, Oxford University Press, 1965, p. 4.
107
law and coercion, but at a particular point of special relevance to our citizen who travels: the relation between law
and security, in the particular context of the law-state and
the question of how to characterize the identity of a legal
system or other forms of legality over time. Familiar examples of the challenge facing characterisation of law and security are easily found, from the decades-long absence of a
law-state in Somalia, to the uncertain legal status of
Kosovo, and on to the lengthy and varied period of uncertainty seen in the set of uneven regime and system-transitions in the context of the Arab Spring of 2011. Questions
regarding the relation between law and security became
particularly pronounced in that context as the rapid
changes seen in countries such as Egypt and Tunisia in
spring were not followed by equally rapid changes in other
countries. Spring wore on into summer, and with it the Libyan insurrection, whose leaders at length gained recognition as states recognized the former rebels as the legitimate
government of Libya.33 More recently questions of state
identity, legality, and legitimacy have arisen in Syria as ongoing unrest verges on civil war.34 At the same time a different kind of security threat to the identity and continuity of
the state has become visible as the European sovereign
debt crisis has threatened the viability of Greece and other
states with an unsustainably high debt-to-GDP ratio,35 rais33 For general analysis see Anderson, Lisa, Demystifying the Arab Spring:
Parsing the Differences between Tunisia, Egypt and Libya (2011), 90 Foreign Affairs 3, 2-7.
34 Journalistic analysis of developments in Syria includes, for example, Syrias
Uprising: Growing Steadily Less Peaceful The Economist online, December 19,
2011, available online at http://www.economist.com/node/21541978. Accessed
January 14, 2012.
35 Eurostat, the Directorate-General of the European Commission responsible
for provision of European-level statistical information, reports that In 2010, 14
Member States reported debt to GDP ratios over the reference value of 60%. Greece
recorded the highest debt ratio with 144.9%, followed by Italy with118.4%.
Structure of government debt in Europe in 2010, Eurostat Issue number
68/2011. Available online at: http://epp.eurostat.ec.europa.eu/portal/page/portal/product_details/publication?p_product_code=KS-SF-11-068 . Accessed January
14, 2012.
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111
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rity, remains important to our worldly citizen, albeit increasingly at the scale of a given legal order, and not just
legal obligation by legal obligation in a single-law state. As
the states role as a law-giver is increasingly shared with
other legal orders, and those orders and the states role in
the community of legal orders is affected by changing relations between law and environment, and law and technology, the question of the identity and continuity of legal orders is justifiably regarded as demanding attention at least
equal to that historically given the persistent questions of
the nature of municipal legal systems and legal obligation
within them, and the relation of legality in that context to
morality, coercion, and social rules. If we succeed in carrying out the research agenda we have advocated, via a renewed relational approach taking the persistence of legal
orders as a major challenge to descriptive-explanatory legal
theory, we may contribute to the destruction of the fiction
of the centrality of the state to the nature of legality, and in
that way, contribute one step to pulling the mask off law.
V. BIBLIOGRAPHY
ANDERSON, Lisa, Demystifying the Arab Spring: Parsing the
Differences between Tunisia, Egypt and Libya
(2011), 90 Foreign Affairs 3.
ANTICAMARA, J. A. et al., Global fishing effort (1950-2010):
Trends, gaps, and implications, 107 Fisheries Research, No. 1.
BENTHAM, Jeremy, A Comment on the Commentaries, Chap.
II, s. 1, in The Collected Works of Jeremy Bentham,
London, Great Britain, Clarendon Press, 1968.
, A Fragment on Government, in BURNS, J. H. and
HART, H. L. A. (eds.), introd. Harrison, R., Cambridge,
Great Britain, Cambridge University Press, 1998.
COLEMAN, Jules, The Practice of Principle, Oxford, Great Britain, Oxford University Press, 2001.
113
, The Demystification of the Law, in Essays on Bentham, Oxford, Great Britain, Clarendon Press, 1982.
LEITER, Brian, Naturalizing Jurisprudence, Oxford, Great
Britain, Oxford University Press, 2007.
MACCORMICK, Neil, H. L. A. Hart, 2nd edn., Oxford, Great Britain, Oxford University Press, 2008.
MORGAN, Edmund, The Price of Honour, New York Review
of Books, XLVIII, No. 9, May 31, 2001, pp.
MORTON, F. L. and KNOPFF, R., The Charter Revolution and
the Court Party, Peterborough, Ontario, Broadview
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RAZ, Joseph, Authority and Justification (1985), 14 Philosophy and Public Affairs 3.
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, Explaining Normativity: On Rationality and the Justification of Reason (1999), 12 Ratio.
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edn., Princeton, New Jersey, Princeton University
Press, 1990.
, The Authority of Law, Oxford, Great Britain, Clarendon Press, 1979.
SANDERSON, Katharine, Too late to save Pacific island nation from submersion Nature news online June 6,
2008. Available online at: http://www.nature.com/
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Accessed Janaury 14, 2012.
SANTOS, Boaventura de Sousa, Toward a New Legal Common
Sense: Law, Globalization, and Emancipation, 2nd edn.,
London, Great Britain, Butterworths, 2002.
115
SIMPSON, Brian, Herbert Hart Elucidated (2006), 104 Michigan Law Review 6.
STOTT, P. A. et al., Human contribution to the European
Heatwave of 2003 (2004), 432 Nature 2.
TAMANAHA, Brian, A General Jurisprudence of Law and Society, Oxford, Great Britain, Oxford University Press,
2001.
, Socio-Legal Positivism and A General Jurisprudence (2001), 21 Oxford Journal of Legal Studies 1.
TWINING, William, General Jurisprudence: Understanding
Law from a Global Perspective, Cambridge, Great Britain, Cambridge University Press, 2009.
, Globalisation and the Legal Theory, London, Great
Britain, Butterworths, 2000.
VINE, David, Island of Shame: The Secret History of the U.S.
Military Base on Diego Garcia, Princeton, New Jersey,
Princeton University Press, 2011.
VON DANIELS, Detlef, The Concept of Law from a Transnational Perspective, Surrey, England, Ashgate Publishing.
WALDRON, Jeremy, Hart and the Principles of Legality, in
KRAMER, M. H. et al. (eds.), The Legacy of H. L. A. Hart:
Legal, Political, and Moral Philosophy, Oxford, Great
Britain, Oxford University Press, 2008.
WYATT-BROWN, Bertram, The Shaping of Southern Culture:
Honour, Grace, and War, 1760s-1880s, Chapel Hill,
North Carolina, University of North Carolina Press,
2000.
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PROBLEMA
Anuario de Filosofa
y Teora del Derecho
DESCRIPTIVE JURISPRUDENCE
Pavlos ELEFTHERIADIS*
Resumen:
Hart sostuvo que la jurisprudencia analtica es descriptiva y general pero
no elabor una distincin explcita entre las preguntas conceptuales que
son principalmente tericas y otras que son principalmente prcticas. En
la explicacin de Hart, la jurisprudencia analtica busca cierto tipo de
claridad acerca de la nocin de derecho y las dems ideas bsicas tal
cual ellas ocurren en nuestra experiencia ordinaria. En el Post Scriptum,
l explica que la jurisprudencia es el estudio terico o cientfico del derecho como un fenmeno social, el cual puede, en ocasiones, basarse en la
deliberacin moral, pero tpicamente no lo hace. Esto puede contrastarse
con las preguntas prcticas acerca de como las personas dirigen su
propia vida. Llamo esta tesis descriptivismo. Esta ha sido una posicin
muy influyente en la jurisprudencia analtica y ha sido defendida por los
seguidores de Hart hasta hoy. En este ensayo despierto dudas sobre su
coherencia. Primero, no creo que Hart defendiera esta tesis de forma
consistente. Segundo, no creo que la posicin haya sido defendida de forma adecuada, ni por Hart ni por sus seguidores. An existe una gran
ambigedad acerca de la posicin exacta de la jurisprudencia entre la
razn terica y la razn prctica.
Palabras clave:
H. L. A. Hart, jurisprudencia analtica, jurisprudencia descriptiva, razn terica, razn prctica.
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PAVLOS ELEFTHERIADIS
Abstract:
Hart said that analytical jurisprudence is descriptive and general but did
not draw an explicit distinction between conceptual questions that are in
the main theoretical and others that are in the main practical. In Harts account, analytical jurisprudence searches for some kind of clarity about the
idea of law and the other basic legal ideas as they occur in our ordinary experience. In the Postscript he explains that jurisprudence is the theoretical
or scientific study of law as a social phenomenon, which may, on occasion,
but typically does not, rely on moral deliberation. It is to be contrasted to
practical questions as to how to live ones life. I shall call this view
descriptivism. It has been a very influential position in analytical jurisprudence and it is being defended by Harts followers even today. In this essay I raise some doubts about its coherence. First, I do not think Hart defended this view consistently even though he did so in the Postscript.
Second, I do not think that the position has been adequately defended, either by Hart or by his followers. There is still a great deal of ambiguity as
to the precise position of jurisprudence between theoretical and practical
reason.
Keywords:
H. L. A. Hart, Analytical Jurisprudence, Descriptive Jurisprudence, Theoretical Reason, Practical Reason.
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DESCRIPTIVE JURISPRUDENCE
SUMMARY: I. Generalisations. II. Semantic Recovery. III. Inductive Inference. IV. Conclusion.
119
PAVLOS ELEFTHERIADIS
120
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CL, 103.
CL, 100.
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PAVLOS ELEFTHERIADIS
mands of the Sovereign. But such theories do not offer explanations of conduct or belief by, say, pairing the existence
of commands by the Sovereign with any kind of conduct or
belief. Austins theory addresses the traditional questions of
jurisprudence, namely how to distinguish law form morals
and how to account for the idea of a legal system. As is well
known, Austin argued that what makes legal propositions
true is a certain pattern of behaviour, consisting in the existence of a sovereign, a habit of obedience and the threat
of sanctions and he used empirical observations in order to
explain legal doctrine and reasoning. But the link was not
causal. It was conceptual. The facts of power operated as
necessary and sufficient criteria for the existence of law and
a legal system of law. They are not offered as causes. They
are criteria for the correct application of the term law.
Analytical jurisprudence is therefore about propositions of
law, not the conduct or beliefs or dispositions such
propositions may bring about.
Descriptivism says that the correct application of such
terms depends on criteria that can be successfully described. The appropriate subject matter of legal theory is
not, therefore, every fact of current law but the inferences
we make about propositions of law on the basis of criteria.
The explanandum of jurisprudence, what stands to be explained by the best theory, is the fact that such inferences
are regularly and effortlessly made and applied by courts
and officials in the ordinary course of life. We conclude that
the aim of all ambitious theories of jurisprudence is the
generalisations that explain how propositions of law are
possible.
We can imagine three stages of this process. A descriptive
theory should first provisionally fix the domain of relevant
propositions of law, at least approximately. It should then
propose, at a second stage, a set of principles that explain
how legal propositions work within such a domain. It must
finally, at a third stage, have the principles tested against
our observations. We fix the domain, propose principles
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123
PAVLOS ELEFTHERIADIS
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The explanation we require is not a synonym or a paraphrase of the troublesome expression but an elimination,
Quine says, of the puzzles it causes.10 In this sense, analysis is not paradoxical. It is not meant to reproduce every aspect of our beliefs and practices, confusions, inconsistencies and all. Accuracy is not our guiding ideal. We seek to
create consensus, where there appears none at first sight.11
Generality is thus more important and accuracy is built
around it. This account of analysis suggests why we are not
allowed to tinker with the existing domain for the sake of
accuracy. We are not to limit it for the sake of convenience,
in order to discover a theory that fits. The task is harder.
We are offering an analysis of this domain, not another. So
at the second stage, the stage of the articulation of explanations, a successful theory of law will provide explanations of
inferences the conscious application of which will produce,
for the relevant domain, approximately the same propositions of law that we have as a matter of observable fact,
other things being equal. The consistency of such conclusions with the conclusions reached by active legal practitioners is the confirmation that the descriptive explanation is
correct. Our observations must confirm the theory. If they
do, we have offered an explication of the troublesome term.
Explication is meant to achieve this fit without perfect
accuracy.
Harts theory of law provides perhaps a good example of
an analytical explication of this type. As is well known,
Harts theory set out to answer three questions of law and
legal reasoning, namely how does law differ from orders
backed by threats, how does legal obligation differ from
moral obligation and what are rules and to what extent is
125
PAVLOS ELEFTHERIADIS
12
13
CL, 13.
CL, 3.
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127
PAVLOS ELEFTHERIADIS
128
DESCRIPTIVE JURISPRUDENCE
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you or I are likely to think up in our arm-chairs of an afternoon the most favoured alternative method.20
The mundane way people apply concepts in ordinary contexts already includes philosophically interesting distinctions, for it embodies the judgment of many generations.
Austin concludes that when we examine what we should
say when, what words we should use in what situations, we
are looking again not merely at words (or meanings, whatever they may be) but also at the realities we use the words
to talk about.21 When we succeed in linguistic analysis, we
do not just produce a better dictionary. We also produce a
better philosophy. The argument is that linguistic usage already embodies explanatory generalisations. Analysis just
recovers them from unthinking obscurity.
Austins example above gives us an indication of how the
method would work. We are to examine the applications of
the word law. We are interested in ordinary use. The hope
is that the relevant usage might be clear and uncontroversial. But it is not in every case. For example, we speak of
the laws of physics and the laws of probability. It is clear
that such usage of the word law lies outside our relevant
domain. Austins method explains that we are not interested in the word law in all its manifestations but in the
meaning of law in the sense of a tool that helps us understand this social institution. The contextual understanding
of words helps us locate the appropriate domain and avoid
the confusion caused by homonyms or unrelated senses of
the same word.22 Another advantage of the linguistic
method is that we have a way of explaining the derivation of
explanatory principles. When we presented the general am20 Austin, A Plea for Excuses in Austin, Philosophical Papers, edited by J. O.
Urmson and G. J. Warnock, third edition (Oxford: Clarendon Press, 1979) 181-2.
21 Austin, Philosophical Papers 182.
22 Such was the argument for linguistic analysis offered by Hart in Definition
and Theory in Jurisprudence in Essays in Jurisprudence 21. Hart says (p. 21) that
I wish to suggest that legal notions however fundamental can be elucidated by
methods properly adapted to their special character.
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If this analysis is correct, we can find an argument for semantic recovery in Harts work. According to this argument,
the explanatory generalisations we need, the explications
that jurisprudence produces, are in some way already im23 Nicos Stavropoulos, Harts Semantics in Coleman (ed.), Harts Postscript,
59-71.
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PAVLOS ELEFTHERIADIS
plicit in current linguistic usage. Our philosophical explanation just unearths them.
Are there shared semantic criteria about law? Ronald
Dworkin has argued for many years against this view. For
Dworkin, the idea of doctrinal law is an interpretive concept
and subject to interpretation. If there are any semantic criteria, these may concern the sociological concept of law at
most. Any such criteria fail to resolve the disputes that legal positivists, legal realists and natural lawyers have about
the doctrinal sense of law.24 But the general argument for
semantic criteria has also been attacked in its entirety, as a
flawed epistemological programme. According to the critics,
no philosophical conclusions can be based on linguistic
convention at all. For Quine, we do not claim to make clear
and explicit what the users of the unclear expression had
unconsciously in mind all along and we do not expose hidden meanings, as the words analysis and explication
would suggest.25 Instead, Quine says, we fix on the particular functions of the unclear expression that make it worth
troubling about, and then devise a substitute, clear and
couched in terms to our liking, that fills those functions.26
Quines argument was meant to apply to logic, mathematics
and natural science, but it works equally well on social theory. There is no reason to believe that linguistic conventions resolve our questions about the nature and character
of any social institution. Explication is more creative than
24 Ronald Dworkin, Laws Empire (Cambridge, Mass., Harvard University
Press, 1986) 6-44, Ronald Dworkin, Justice in Robes (Cambridge, Mass., Harvard
University Press, 2006) 223-240.
25 Quine, Word and Object 258.
26 Quine, Word and Ojbect 258-9. Quine notes that the notion that analysis
must consist somehow in the uncovering of hidden meanings underlies also the recent tendency of some of the Oxford philosophers to take as their business an examination of the subtle irregularities of ordinary language (p. 259). But he deplores this narrowness and writes: It is ironical that those philosophers most
influenced by Wittgenstein are largely the ones who most deplore the explications
just now enumerated. In steadfast laymanship they deplore them as departures
from ordinary usage, failing to appreciate that it is precisely by showing how to circumvent the problematic parts of ordinary usage that we show the problems to be
purely verbal (p. 261).
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This applies not just for agreed criteria but also to the
case of model examples, that allow for some degree of flexibility over interpretation. In Words and Things Ernst
Gellner made precisely this point with particular clarity.28
Gellner noticed that the argument from paradigm cases
was also question-begging. When we identify the standard
or paradigm case of the use of a word we have only done
just that. We do not assert that this use has any wider significance. If we did, we would be begging the question in
the following way:
The Argument from Paradigm Cases does not even say that a
word is always rightly used, but merely that it is rightly used
in the Paradigm Case of its employment: and surely we
should be prepared to grant this. Indeed, it is a contradiction
to deny it. Words mean what a given language, its rules and
custom say they mean, neither more nor less.29
For Gellner the fallacy is to treat a de facto rule of language as a valid philosophical conclusion.30 Gellner writes
that the fact that there are standard cases for the application of the term such as miracle in a given society in no
way proves that such terms have a legitimate use.31 There
is no doubt that ordinary speakers use these terms. But
this does not mean that they have an empirical application,
or that they help explain any area of reality adequately.
Philosophical questions are, therefore, about the valid use
28 Ernst Gellner, Words and Things: an Examination of, and an attack on, Linguistic Philosophy, revised ed. (London: Routledge and Kegan Paul, 1979). The
work was first published as Words and things: a Critical Account of Linguistic Philosophy and a Study of Ideology (London: Gollancz, 1959). All references are to the revised second edition.
29 Gellner, Words and Things, 55-56. See also J. W. N. Watkins, Farewell to the
Paradigm-Case Argument 18 Analysis (1957) 25.
30 Gellner, Words and Things, 59-61. For a similar argument suggesting caution in the use of linguistic and other intuitions in philosophical arguments see
Jaako Hintikka, The Emperors New Intuitions 96 Journal of Philosophy (1999)
127.
31 Gellner, Words and Things, 56.
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DESCRIPTIVE JURISPRUDENCE
of terms, not about how in fact, a word is used.32 Answering the second question entails nothing about the first.33
All such epistemological objections, however, need not be
employed or pursued in great detail. The reason is that, as I
already mentioned above, the fundamental assumption on
which this account of semantic jurisprudence may be built
is manifestly false. As a matter of fact, there is no linguistic
convergence about law. The speakers of our language do
not speak of law with one voice.
As Dworkin and many others have shown, our beliefs
and meanings remain too diverse for a single theory.
Some theories dominate one domain whereas others dominate elsewhere. Hence, the most likely conclusion of a
semantic theory should be that there cannot be a semantic general theory of law at all. Perhaps there can only be
textbooks of the various areas of legal doctrine. The case of
Riggs v Palmer, made famous by Dworkin is a good example
of the persistence of disagreement.34 Here the propositions
of the majority and the minority reflected conflicting and inconsistent beliefs about law, so much so that they seemed
to be backed by conflicting meanings for law. For Dworkin,
this shows that law is in fact an interpretive concept. Whatever it is, it is not the result of linguistic convergence. The
same could also be said of the term right. The currency of
the will and interest theories shows that convergence is
also lacking. Semantic jurisprudence does not have an effective response to the incidence of such deep disagreements. All it can say is that if the use is inconsistent, there
cannot be a general theory. If the facts resist, we should
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136
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137
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138
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leading, since there is little in any actual system which corresponds to it.45
Harts argument can be seen to follow in the footsteps of
an empiricist tradition of social philosophy originating in
Hume and Mill. Hume, for example, warned us that the
only solid foundation we can give to the study of human
nature and the science of man must be laid on experience
and observation.46 Pursuing the same line of thought, Mill
sought to apply the methods of physical science to society,
by generalising the methods successfully followed in the
former inquiries, and adapting them to the latter so as to
remove this blot on the face of science.47 For this school of
thought a social theorist is concerned with the facts of the
social world, leaving speculation about the right and the
good behind. Induction, not deduction, is the preferred
method of descriptivism. Nevertheless, there are important
problems with this reading.
The first problem concerns the criteria with which we
judge the success of inductive inference. The empirical argument is roughly as follows. From the fact that all observed relevant instances A of the relevant domain (e.g. legal rules in our legal order) are B (e.g. are viewed from an
internal point of view by the relevant officials) we may infer
that all As are Bs (all legal rules are generally viewed from
an internal point of view by the relevant officials). Under
what conditions is one permitted to make the inference?
The inference is not a deduction and its truth is not
demonstrated.
Gilbert Harman has shown that induction is theory rich.
It works as an inference to the best explanation, on the basis of a number of independent criteria.48 So an inductive
CL, 27.
David Hume, A Treatise of Human Nature, second edition by L. A. Selby-Bigge
and P. H. Nidditch (Oxford: Clarendon Press, 1978; first published 1739) xvi.
47 J. S. Mill, A System of Logic Ratiocinative and Inductive, eighth edition (London: Longmans, Green & Co., 1900; first published 1843) 546.
48 Gilbert Harman, The Inference to the Best Explanation 74 Philosophical Review (1965) 88. See also Gilbert H. Harman, Enumerative Induction and Best Ex45
46
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is normally the case for officials, but there may be mistakes. We must take him to be saying that the hypothesis is
confirmed by a sufficient proportion of instances. Other
theories may have less success with the facts. Yet, we are
not given any evidence for this assertion. There is no comparison of competing inductions. Can the argument work
without this factual, i.e. empirical, testing?
The problem under the empiricist argument is that
descriptivism does not allow us to choose without such evidence. Harts theory is presented as the better or more normal description. And here is the problem with the inductive
argument. Hart and his followers, as Dworkin notices
offer no empirical argument of this kind. Instead they test
the theory on different grounds. They argue for its analytical clarity and coherence. But such considerations must be
secondary. We need a better description, not the description of something better. The latter commits us to the error
of wishful thinking. Harman, for example, states that in
cases of inductive inference the best explanation may be
preferred because it is a better, simpler, more plausible
hypothesis. But this assumes that it has the facts right and
has adequate predictive force. The argument from induction
suggests that: as long as the hypothesis that the next A
will be similar is a better hypothesis in the light of all the
evidence, the supposed induction is warranted.50 Here is
then the problem. Harts assumption concerning the internal point of view is not defended as the explanation that
matches the most or an adequate proportion of instances of
law.
Hart argues that rules have an internal point of view in
the sense that they are conceived and spoken of as imposing obligations when the general demand for conformity is
insistent and the social pressure brought to bear upon
them to those who deviate or threaten to deviate is great.51
Harts argument is that the external point of view, which
50
51
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142
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PAVLOS ELEFTHERIADIS
descriptivism is thus forced to scepticism about law and jurisprudence. There may not be any essential truth about
law with universal value. Pluralism leads to fragmentation.
But we know that Hart was neither a pluralist nor a sceptic
about the concept of law or rights. He defended both a clear
general legal positivist theory of law and a clear and general
will theory of rights. The problem is that they cannot be the
result of descriptivism.
How did Hart get there? There is an answer, taking us
beyond descriptivism. In The Concept of Law Hart states
that the purpose of legal theory is not to provide a definition of law, in the sense of a rule by reference to which the
correctness of the use of the word can be tested; it is to advance legal theory by providing an improved analysis of the
distinctive structure of a municipal legal system and a
better understanding of the resemblances and differences
between law, coercion, and morality, as types of social phenomena.56 This suggests that the project is more constructive than we have so far assumed. Jurisprudence is improvement on and not a mirror image of legal practice. In
one of his later essays Hart said that in the course of jurisprudence we pick out and collect clusters of features frequently recurrent in the life of a legal system, to which it
was important to attend for some statable theoretical or
practical purpose.57 But that project, Harts own, is not a
descriptive project.
IV. CONCLUSION
Harts account of his own method and his execution of
that method is still puzzling. Description and generalisation
seem to pull towards entirely different directions. Harts
programmatic statements set out to vindicate descriptive
jurisprudence, a kind of jurisprudence that goes beyond
56
57
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145
PROBLEMA
Anuario de Filosofa
y Teora del Derecho
Resumen:
En este artculo el autor, en el contexto del cincuenta aniversario de El
concepto del derecho de H. L. A. Hart, reconsidera la tesis de la indeterminacin moderada del derecho, la cual deriva de la textura abierta del
lenguaje. Para tal propsito, pretende: primero, analizar la tesis de la indeterminacin moderada del derecho, i.e. determinacin en los casos fciles e indeterminacin en los casos difciles, la cual recuerda la doctrina del trmino medio de Aristteles; segundo, criticar la tesis de la
indeterminacin moderada del derecho por fracasar en dar lugar al trmino medio virtuoso entre extremos viciosos, al insistir que el ejercicio
de la discrecin requerida constituye una legislacin intersticial; y, ter* Revised version of the papers presented in the Special Workshop H.L.A.
Harts The Concept of Law Reconsidered at the XXV IVR World Congress of Philosophy of Law and Social Philosophy Law, Science, Technology, in Frankfurt am
Main (Germany), August 18, 2011; and in Congreso Internacional de Filosofa del
Derecho, Coordinacin del Programa de Posgrado en Derecho, Facultad de Estudios Superiores Acatln, in Santa Cruz Acatln, Estado de Mxico (Mexico), November 14, 2011; and of the keynote address delivered in Primeras Jornadas
Internacionales de Filosofa del Derecho, Universidad Francisco Marroqun, Guatemala (Guatemala), November 4, 2011.
** Professor-Researcher, Instituto de Investigaciones Jurdicas (Legal Research Institute) and Facultad de Derecho (Law School), UNAM. E.mail:
[email protected]. I am grateful to Tom Campbell, Pierluigi Chiassoni, Noam Gur,
Eerik Lagerspetz, Roger Shiner, and Ronaldo Macedo for their commentaries and
reactions in the Special Workshop. I am also thankful not only to Kenneth E.
Himma and Wilfrid J. Waluchow for their comments and observations but also to
Juan Vega for his public remarks to the keynote address and his suggestions. All
of them were extremely helpful on how to improve this version, especially Ken
Himma, but errors are still mine.
147
IMER B. FLORES
Palabras clave:
Discrecin, indeterminacin, interpretacin, legislacin.
Abstract:
In this article the author, in the context of the fiftieth anniversary of H. L. A.
Harts The Concept of Law, reconsiders the moderate indeterminacy of law
thesis, which derives from the open texture of language. For that purpose,
he intends: first, to analyze Harts moderate indeterminacy thesis, i.e. determinacy in easy cases and indeterminacy in hard cases, which resembles Aristotles doctrine of the mean; second, to criticize his moderate
indeterminacy thesis as failing to embody the virtues of a center in between
the vices of the extremes, by insisting that the exercise of discretion required constitutes an interstitial legislation; and, third, to reorganize an
argument for a truly mean position, which requires a form of weak interpretative discretion, instead of a strong legislative discretion.
Keywords:
Discretion, Indeterminacy, Interpretation, Legislation.
148
But sailing your ship swiftly drive her past and avoid
her [i.e. Charybdis], and make for Skyllas rock instead, since it is far better to mourn six friends lost
out of your ship than the whole company.
Circes advice to Odysseus,
Odyssey, Book XII, 108-10.
in
HOMER,
The
I. INTRODUCTION
Reconsider H. L. A. Harts legacy in the golden anniversary
of The Concept of Law,1 in general, and his moderate indeterminacy of law thesis, in particular, are the principal
aims of this article. Actually, Hart is considered unarguably
among the jurists who contributed more to jurisprudence
in the second half of the Twentieth Century, by restoring legal philosophy to a central place in the study of both law
and (general) philosophy. Certainly, The Concept of Law was
1 H. L. A. Hart, The Concept of Law, Oxford: Oxford University Press, 1961
[hereinafter CL1].
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IMER B. FLORES
quintessential for that purpose and has been highly influential ever since the original publication in 1961 and subsequently with the appearance of the 2nd edition with a
Postscript (edited by Penelope A. Bulloch and Joseph Raz)
in 1994.2
Personally, I consider as the core contributions of Hart:
(1) The concept of law as a (complex) model of rules i.e.
the union of primary and secondary rules thesis; (2) The
separation of law and morals thesis; and (3) The moderate
indeterminacy of law following the open texture of language thesis. In what follows, I will reconsider the third
thesis, but the first and second theses will be reconsidered
as well. Hence, in this paper, I am assuming a conceptual
methodology in which normative argument is relevant but
my analysis intends to remain mostly descriptive with three
main objectives: first, to analyze Harts moderate indeterminacy thesis, i.e. determinacy in easy cases and indeterminacy in hard cases, which, I argue, resembles Aristotles doctrine of the mean; second, to criticize his
moderate indeterminacy thesis as failing to embody the virtues of a center in between the vices of the extremes, by insisting that the exercise of discretion required constitutes
an interstitial legislation; and, third, to reorganize an argument for a truly mean position, which requires a form
of weak interpretative discretion, instead of a strong legislative discretion.3
2 H. L. A. Hart, The Concept of Law, 2nd. ed., Oxford: Oxford University Press,
1994 [hereinafter CL2].
3 Most of indeterminacy talk is related to language and meaning and can
be characterized as linguistic and semantic indeterminacy. However, at this
point, I would like to introduce a distinction between two additional kinds of indeterminacy relevant to law. On the one hand, there is epistemic indeterminacy related to uncertainty, i.e. our inability to know which the (correct) answer is to a legal dispute. On the other hand, there is systemic indeterminacy related to
incompleteness, i.e. our inability to reach a (single) answer in a legal dispute,
which may contingently derive from language but not necessarily reduced to it. In
short, there is epistemic indeterminacy when there is no way of knowing which the
(correct) answer is; and systemic indeterminacy when there is no way of reaching a
(single) answer. In that sense, law may be affected by linguistic and semantic
indeterminacy and appear to have systemic indeterminacy but not necessarily if
150
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IMER B. FLORES
the title of chapter VII of his The Concept of Law: i.e. Formalism and Rule-Scepticism,10 and the subtitle of his 1977
Sibley Lecture American Jurisprudence through English
Eyes: i.e. The Nightmare and the Noble Dream,11 both of
which allow Hart to stand somewhere in a center between
extremes represented not only by formalism and anti-formalism, i.e. rule-skepticism; but also by realism, i.e. nightmare (or too bad to be remembered) and idealism, i.e.
noble dream (or too good to be true).
1. Hans Kelsens Frame
Before proceeding with Hart, let me call attention to the
fact that for Kelsen the indeterminacy derives from the
hierarchical structure of the legal system and is labeled
as (more or less) relative to the levels higher or lower
of the legal system and to the movement from one level to
the next. In that sense, the higher-level norm determines
the process for the creation of the lower-level norm and
possibly the content as well or at least to some extent. As
Kelsen acknowledges:12
This determination, however, is never complete. The higherlevel norm cannot be binding with respect to every detail of
the act putting it into practice. There must always remain a
range of discretion, sometimes wider, sometimes narrower,
so that the higher-level norm, in relation to the act of applying it (an act of norm creation or of pure implementation),
has simply the character of a frame to be filled in by way of
the act. Even a meticulously detailed command must leave a
number of determinations to those carrying it out. If official
tremes is something which makes a system of mutual forbearances both necessary
and possible.
10 Hart, CL1, p. 121; and CL2, p. 124.
11 H. L. A. Hart, American Jurisprudence through English Eyes: The Nightmare and the Noble Dream, which was printed first in 11 Georgia Law Review, 969
(1977); and, later, in Essays..., supra note 4, pp. 123-44 [references will be made to
this version].
12 Kelsen, PTL1, p. 78 (emphasis added).
152
153
IMER B. FLORES
is simply a frame within which various possibilities for application are given, and very act that stays within this frame, in
some possible sense filling it in, is in conformity with the
norm.
Ibidem, p. 81.
Idem (emphasis added).
154
18
19
20
155
IMER B. FLORES
that law is open textured (or has open texture), and as such
is indeterminate (or has indeterminacy):
All language is open textured
Law is expressed in language
! Law is open textured
156
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IMER B. FLORES
Fourth, Hart like Kelsen considers that (in)determinacy is a matter of degree: law is determinate in some areas and indeterminate in others. For the Austrian jurist law
is indeterminate inside the frame and determinate outside
it: it is not-law at all; and for the British legal philosopher
law is determinate in the core and indeterminate in the penumbra.29 In Harts words, as originally introduced in the
Holmes Lecture in 1957:30
A legal rule forbids you to take a vehicle into the public park.
Plainly this forbids an automobile, but what about bicycles,
roller skates, toy automobiles? What about aeroplanes? Are
these, as we say, to be called vehicles for the purpose of the
rule or not? If we are to communicate with each other at all,
and if, as in the most elementary form of law, we are to express our intentions that a certain type of behaviour be regulated by rules, then the general words we use like vehicle in the case I consider must have some standard
instance in which no doubts are felt about its application.
There must be a core of settled meaning, but there will be, as
well, a penumbra of debatable cases in which words are neither obviously applicable nor obviously ruled out.
158
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IMER B. FLORES
water (or even worse throws the baby out and keeps the
bath water):35 interpretation of law is uncertain, i.e. epistemic indeterminacy, and more or less incomplete, i.e. systemic indeterminacy. On the other hand, Hart, by standing
over the shoulders of Oliver Wendell Holmes prediction/prophecy theory,36 defends it as a matter of degree: interpretation of law is more or less uncertain, i.e. epistemic
indeterminacy, and more or less incomplete, i.e. systemic
indeterminacy, depending on the open texture of language.
At the end, it is this strategy, as already advanced, which
allows Hart to stand apparently somewhere in a center of
virtue between extremes of vice not only (1) in between formalism and anti-formalism, i.e. rule-skepticism, and (2) in
between realism, i.e. the nightmare, and idealism, i.e. the
noble dream.
1. Formalism and Anti-Formalism (i.e. Rule-Skepticism)
On one side, Hart appears to give his dues both to formalism agreeing that there are some central or paradigmatic cases falling within a core of certainty or settled
meaning, but disagreeing that all cases are clear and precise; and, to anti-formalism (i.e. rule-skepticism) arguing that
there are other peripheral cases falling within a penumbra
35 Hart did use this expression to refer to Robert Nozicks Anarchy, State and
Utopia, New York: The Free Press, 1974, vid. H. L. A. Hart, 1776-1976: Law in the
Perspective of Philosophy, which was published first in 51 New York Law Review
538 (1976); and, later, in Essays, supra note 4, pp. 145-158 [references will be
made to this version.] Ibidem, p. 152: Other theories perhaps Professor Nozicks
among them do worse: they throw out the baby and keep the bath-water.
36 Vid. Oliver Wendell Holmes Jr., The Path of the Law, Harvard Law Review,
Vol. 10, 1897, pp. 457-78; and reprinted in Vol. 110, 1997, pp. 991-1009 [reference will be made to this version]. Ibidem, p. 993: If you want to know the law and
nothing else, you must look at it as a bad man who cares only for the material consequences which such knowledge enables him to predict, not as a good one who
finds his reasons for conduct, whether inside the law or outside of it, in the vaguer
sanctions of conscience. Ibidem, p. 994: But if we take the view of our friend the
bad man we shall find that he does want to know what the courts are likely to do
in fact. I am much of his mind. The prophecies of what courts will do in fact, and
nothing more pretentious, are what I mean by the law.
160
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IMER B. FLORES
162
never declare the existing law;45 and, to the noble dream arguing that in some cases judges do not make law and declare the existing law, but assenting that sometimes they
do make (new) law and do not declare the existing law
since there is no existing law to be declared. In that
sense, American Jurisprudence has oscillated between two
extremes with many intermediate stopping-places.46 Anyway, Hart acknowledges that Litigants in law cases consider themselves entitled to have from judges an application
of the existing law to their disputes, not to have new law
made for them and proceeds not only to delineate the image of the judge following Lord Radcliffe as an objective, impartial, erudite, and experienced declarer of the law
but also to distinguish it from the very different image of
the legislator: the maker of the law, i.e. the law-maker.47
In the nightmare view identified with the American Legal
Realism movement of 1920s and 1930s, but the characterization is equally applicable to the Critical Legal Studies
movement of late-1970s and mid-1980s, and other critical
theories since then48 the distinction between the judge
and the legislator is a mere illusion. The American Legal
Realists especially Jerome Frank and Karl N. Llewellyn
according to Hart were concerned to stress the legislative
opportunities of the courts49 and their main effect was to
convince many judges and lawyers, practical and academic,
of two things:50
45 Vid. Hart, American Jurisprudence through English Eyes..., supra note 11,
p. 127: [In] the Nightmare view... judges make the law which they apply to litigants and are not impartial, objective declarers of existing law. Ibidem, p. 128:
[A]s if adjudication were essentially a form of law-making, never a matter of declaring the existing law.
46 Ibidem, p. 125.
47 Ibidem, p. 126 [reference is omitted].
48 Vid. v. gr. Brian Bix, Jurisprudence: Theory and Context, 3rd. ed., London:
Sweet & Maxwell, 2003, pp. 177-187, and 217-236.
49 Hart, American Jurisprudence through English Eyes..., supra note 11, p.
131.
50 Ibidem, p. 132.
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IMER B. FLORES
164
mally treated as stating what the law has always been, and
as a correcting mistake, and is given a retrospective operation; and finally, the fact that the language of a judges decision is not treated, as is the language of a statute, as the authoritative canonical text of a law-making verbal act.
Ibidem, p. 144.
Vid. supra note 44.
Vid. supra note 53.
165
IMER B. FLORES
166
dle path, by suggesting that in those cases judges do legislate. The problem is whether there is a truly mean position,
i.e. a middle way.
In a few words, Hart affirms that a creative judicial activity60 is required to face the moderate indeterminacy and
certainly it implies discretion, but the problem is that he
equates creative to legislative and judicial discretion to
judicial legislation. In Harts voice:61
Laws require interpretation if they are to be applied to concrete cases, and once the myths which obscure the nature of
the judicial processes are dispelled by realistic study, it is
patent that the open texture of law leaves a vast field for a
creative activity which some call legislative. Neither in interpreting statutes nor precedents are judges confined to the
alternatives of blind, arbitrary choice, or mechanical deduction from rules with predetermined meaning. Very often their
choice is guided by an assumption that the purpose of the
rules which they are interpreting is a reasonable one, so that
the rules are not intended to work injustice or offend settled
moral principles At this point judges may again make a
choice which is neither arbitrary nor mechanical; and here
often display characteristic judicial virtues, the special appropriateness of which to legal decision explains why some
feel reluctant to call such judicial activity legislative.
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IMER B. FLORES
63
168
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IMER B. FLORES
The part of Harts rejoinder referring to constraints positions him really close to Kelsen and even to Kennedy.67
Moreover, Harts insistence on the nature of such law-making powers as interstitial, but legislative still,68 gets Hart
back over the shoulders of Holmes: I recognize without
hesitation that judges do and must legislate, but they can
do so only interstitially; they are confined from molar to
molecular motions.69 However, the fact of being interstitial
does not cancel it being legislative. As you can imagine, my
feeling is that Hart by appealing to a form of discretion
that equates creative to legislative misses an important
distinction and we seem to be in danger of missing too.
The distinction I have in mind is between interpretative
and inventive (or legislative) creative judicial activity,
which corresponds to a weak and strong forms of discre-
170
tion,70 i.e. between the weak discretion to interpret the (existing) law and even implicit principles and aims or purposes to be applied to the case at hand and the strong
discretion to invent (or legislate) the (new) law or even to
change the (existing) law.
After all, Hart acknowledged:71
[J]udges do not just push away their law books and start to
legislate without further guidance from the law. Very often,
in deciding such cases, they cite some general principle or
some general aim or purpose which some considerable relevant area of the existing law can be understood as exemplifying or advancing and which points towards a determinate
answer for the instant hard case.
Actually, reconsider Harts No vehicles in the park example. Imagine that someday a boy, called Freddie, who all
he wants to do is to learn how to ride his bicycle, comes
into a park with it and is prevented from riding it by the
park keeper, who points out to the prohibition. Suppose
that his mother Mrs. Mercury challenges the decision on
his behalf and reaches a point in which a judge with final
authority has to settle the dispute. It is clear that the word
vehicles is vague but bicycles are typically included in vehicles, but it is unclear whether the prohibition incorporates bicycles or not.
What is the judge expected to do? In other words: Is the
judge expected to invent (or legislate) a (new) law or to
change the (existing) law, acting as a legislator? Or is expected to interpret the law, appealing not only to principles
but also to aims and purposes? Alternately: Is the judge in
a position to exercise a strong legislative discretion to go either way? Or is expected to exercise a weak interpretative
70 I am aware that Dworkin introduced the distinction between weak and
strong forms of discretion in The Model of Rules, but I am distancing from his
use and trying to develop it in a way consistent with Hart and with a truly mean
position. Vid. Ronald Dworkin, Taking Rights Seriously, 2nd. ed., Cambridge, Massachusetts: Harvard University Press, 1978, pp. 31-9 and 68-71.
71 Hart, CL2, p. 274.
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IMER B. FLORES
172
173
PROBLEMA
Anuario de Filosofa
y Teora del Derecho
RESUMEN:
En este artculo se argumenta que la respuesta a la pregunta de si las
normas jurdicas son razones independientes de contenido depende de
tres distinciones que demarcan cmo las normas jurdicas son razones
independientes de contenido en algunos sentidos, pero no en otros. La
primera distincin es entre dos sentidos de independiente de contenido
que el autor refiere como fuerte y dbil. En el argumento se sostiene que,
si bien las normas jurdicas generan razones independientes de contenido en el sentido dbil, el hecho de que generen razones independientes
de contenido en el sentido fuerte depende, a su vez, de otras dos distinciones: primero, una distincin entre enunciados evaluativos y descriptivos de razones; y segundo, una distincin entre razones para la accin y
razones para adoptar ciertas actitudes. La independencia de contenido
fuerte contina el argumento es una nocin consistente slo en la
medida en que se formule con enunciados descriptivos de razones (a diferencia de enunciados evaluativos de razones) que se relacionan con acciones (en contraste con las actitudes). Finalmente, se enuncia una tesis
implcita que vincula los diferentes sentidos en que las normas jurdicas
son razones independientes de contenido, al mismo tiempo que explica
sus diferencias.
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NOAM GUR
Palabras clave:
Razones independientes de contenido, normas jurdicas, normatividad, H. L. A. Hart, Joseph Raz.
ABSTRACT:
I argue that the answer to the above question turns on three distinctions
which make it clear that legal rules are content-independent reasons in
some senses, but not in others. The first distinction is between two senses
of content-independence, which I refer to as weak and strong content-independence. I argue that, while legal rules do give rise to content-independent
reasons in the weak sense, whether they can be said to generate content-independent reasons in the strong sense depends on two further distinctions: first, a distinction between evaluative and descriptive statements
about reasons; second, a distinction between reasons for action and reasons for adopting certain attitudes. Strong content-independence, I argue,
is a sound notion only insofar as it figures in descriptive reason-statements
(as opposed to evaluative reason-statements) with regard to actions (as opposed to attitudes). Finally, I uncover an underlying explanation that links
the different senses in which legal rules are content-independent reasons,
and accounts for the differences between them.
Keywords:
Content-Independent Reasons, Legal Rules, Normativity, H. L.
A. Hart, Joseph Raz.
176
SUMMARY: I. Introduction. II. Strong and Weak Content-Independence. III. Does Law Provide Weakly/Strongly
Content-Independent Reasons? IV. A Discrepancy
with Good Reason. V. Conclusion.
I. INTRODUCTION
Since introduced by H. L. A. Hart and espoused by Joseph
Raz, content-independent reasons have become part and
parcel of the conceptual vocabulary of legal theorists.1 Yet
the range of reactions provoked by this notion manifests a
serious dissonance in jurisprudential thought. On the one
hand, several theorists have acknowledged that the notion
successfully captures a key feature of laws normativity and
authoritative nature.2 On the other hand, as one writer put
it, few believe I can have a reason to perform an action
simply and only because the law to which I am subject says
I must3 a denial that appears intuitively plausible yet
seems to stand in direct opposition to the idea of content-independence. In this paper, I argue that the key to resolving this dissonance lies in three distinctions: (1) a dis1 Hart, H. L. A., Essays on Bentham, Oxford, Clarendon Press, 1982, pp. 18,
243-68; Raz, Joseph, The Morality of Freedom, Oxford, Clarendon Press, 1986, pp.
35-7. See further Green, Leslie, The Authority of the State, Oxford, Clarendon Press,
1990, pp. 41-62, 225-6; Duff, R. A., Inclusion and Exclusion, Current Legal Problems, vol. 51, 1998, pp. 241-66, at p. 247; Himma, Kenneth E., Hart and the Practical Difference Thesis, Legal Theory, vol. 6, 2000, pp. 1-43, at pp. 26-7; Shapiro,
Scott, Authority, in Coleman, Jules L. and Shapiro, Scott (eds.), The Oxford
Handbook of Jurisprudence and Philosophy of Law, Oxford, Oxford University
Press, 2002, p. 389; Christiano, Thomas, Authority, in Stanford Encyclopedia of
Philosophy, <http://plato.stanford.edu/entries/authority/>, accessed 1 March
2011 (referring mostly to content-independent duties); Schauer, Frederick, Authority and Authorities, Virginia Law Review, vol. 94, 2008, pp. 1931-61, at pp.
1935-6.
2 See, e.g., Green, supra note 1, pp. 41-62, 225-6; Schauer, supra note 1, pp.
1935-6; Christiano, supra note 1.
3 Markwick, Paul, Independent of Content, Legal Theory, vol. 9, 2003, pp.
43-61, at p. 57; Markwick, Paul, Law and Content-Independent Reasons, Oxford
Journal of Legal Studies, vol. 20, 2000, pp. 579-96, at p. 586 (though this statement
of Markwick is merely incidental to his main objections against content-independent reasons). See further Edmundson, William A., Three Anarchical Fallacies, Cambridge, Cambridge University Press, 1998, pp. 12-4.
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tinction between two understandings of content-independence, which I refer to as weak and strong contentindependence; (2) a distinction between evaluative statements about reasons and descriptive statements about reasons; and (3) a distinction between reasons for action and
reasons for adopting certain attitudes. Drawing on these
three distinctions, my analysis leads to a nuanced answer
to the question of whether rules (and other requirements) of
law provide content-independent reasons: in some senses
they do, in others they do not.4 In the final part of the paper, I uncover an underlying rationale that connects and
explains the disparity between the senses in which law does
and does not provide content-independent reasons.
II. STRONG AND WEAK CONTENT-INDEPENDENCE
Let us begin with the relevant ambiguity in the notion of
content-independence. Pertinent to my analysis are two
possible renderings of content-independence: according to
the first rendering, to say that the reasons law generates
are content-independent is to say that their status as reasons does not depend on the question of what action a
given legal provision requires, but rather is attributable to
the fact that law requires the action. It will be noticed that
this rendering consists of both a negative element (i.e. does
not depend on the question of what action a given legal provision requires) and a positive element (i.e. is attributable
to the fact that law requires the action). This sense of content-independence, which will be referred to as the strong
4 Phrasing the question this way, i.e. asking whether rules provide (or generate, supply, give rise to, etc.) content-independent reasons, is analytically more
correct than the formulation used in the title, i.e. whether rules are content-independent reasons, since the latter formulation is pleonastic: to say that rules are
reasons is to say that they themselves (or the fact of their enactment) are reasons,
rather than that their content happens to coincide with what we anyway have reasons to do. Thus, if rules are reasons they are, eo ipso, content-independent reasons. In light of this, I will be mostly using terms such as provide/generate/give
rise to content-independent reasons, and even when using different terminology I
should be taken to mean the same.
178
Harts
basic
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NOAM GUR
180
lawmaking institution which, when present, militate in favor of compliance with its requirements (these will be frequently referred to as substantive considerations for
law-compliance, law-following values, or the like). A clear expression of this sense of content-independence may be
found, for instance, in the following remark of Raz:10
Take a rule saying that members [of a chess club] are entitled to bring no more than three guests to social functions of
the club. The considerations which establish that it is binding do not turn on the desirability of members having a
small number of guests, nor on the desirability of members
having the option to bring guests, but on the desirability of
the affairs of the club being organised by the committee
which laid down the rule [which he attributes to evaluative
considerations such as a recognition that the harm that
would be occasioned by a disorderly attempt to overturn the
rules of the committee is too great]. It is, in other words, an
instance of what I call (following Hart) a content-independent
justification. It is content-independent in that it does not
bear primarily on the desirability of the acts for which the
rule is a reason. [T]he considerations which show why the
rule is binding, i.e. why it is a reason for not bringing more
than three guests, do not show that it is good not to bring
more than three guests. They show that it is good to have
power given to a committee, and therefore good to abide by
decisions of that committee. But that can justify a variety of
rules. They are, in this sense, content-independent.11
10
Once more, I do not wish to make an exegetical claim that attributes to Raz a
general endorsement of this sense of content-independence. I only quote this comment of his as an example of a statement that comports with that sense.
11 Raz, Joseph, Reasoning with Rules, Current Legal Problems, vol. 54, 2001,
pp. 1-18, at pp. 8-9. Other statements consistent with the weak sense are made,
for example, by Duff, supra note 1, p. 247 (referring to content-independent reasons as reasons which justify her [i.e. a ruler] in demanding obedience from the
people at allreasons which give her the right to issue commands or rules, and
to back them by different threats) and by Thomas Christiano in The Authority of
Democracy, The Journal of Political Philosophy, vol. 12, 2004, pp. 266-90 (p. 267:
[I]f a process is genuinely democratic justice demands that individuals comply
with the decision-making process. The demand is content independent: compliance is required regardless of the content of the democratic decision ; p. 287:
[O]nly by obeying the democratically made choices can citizens act justly. Demo-
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cratic directives give content-independent reasons since one must accept a democratic decision as binding even when one disagrees with it).
12 Text accompanying notes 5-9.
13 Himma, supra note 1, p. 26.
182
14 A question may arise, however, as to whether some of these reasons are excluded by the rule I have discussed this question in Gur, Noam, Legal Directives
in the Realm of Practical Reason: A Challenge to the Pre-Emption Thesis, American Journal of Jurisprudence, vol. 52, 2007, pp. 159-228.
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driving on the left.15 This, of course, is just one, clear example of a coordinative rule, and there are many other types of
legal rule that involve a coordinative dimension, contribute
to determinacy and certainty in social life, and have other
desirable aspects which are not specifically tied with the
particular content adopted values which compliance with
the rule tends to protect and promote. It seems, therefore,
that the answer to our first question, whether legal requirements give rise to content-independent reasons in the weak
sense, is that they can and frequently do.16
Do legal requirements constitute content-independent
reasons in the strong sense (i.e. reasons attributable, not to
their content, but to the mere fact of their being legal)? It is
tempting to respond with a simple no. For one cannot
help but wonder: how can the mere fact that an action is
required by a lawmaker, his mere say-so, constitute a reason to act in and of itself? Human beings cannot create reasons out of thin air simply by requiring that others act in
some way. An utterance of a lawmaker, the thought may
continue, is no more than an artifact of the human will
which cannot by itself turn a false moral proposition into a
true one or determine by way of stipulation what is wrong
and what is right.17 It can only have normative bearing
when and insofar as it appears in conjunction with some
non-artificial, evaluative factors which make it the case
that, and explain why, it is good to follow the law factors
of the type mentioned in the preceding paragraph.18
15
True, this reason depends on the fact that the context of regulation is such
that involves a coordination problem, but it remains independent of the particular
content chosen by the legislature (within a certain range of possibilities). So, although this coordination reason depends on the regulated context, it is (in a limited, but important sense) content-independent.
16 That is, they do so when and insofar as the lawmaking procedure or institution has the attributes that make it desirable to follow legal directives.
17 A similar argument is mentioned by Hart, supra note 1, p. 265 (though he
mentions it as part of a more moderate objection to his conception of authoritative
reasons).
18 Idem.
184
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186
NOAM GUR
stopping her car at a red traffic light, why she had stopped,
her (surprised) response would probably be simply to point
at the red light or to say that this is what the law requires.
Indeed, that participants in the legal practice, who share
its internal point of view, regularly treat laws in the way
just exemplified is a point famously made by Hart in The
Concept of Law.22 And although, for Hart, a society may
have a legal system even if its private citizens, as opposed
to public officials, do not share the internal point of view,
he nonetheless referred to a society in which they largely do
not as an extreme case, and maintained that in normal societies citizens will often assume it.23 For such citizens, as
Hart noted, the red light is a reason for stopping in conformity to rules which make stopping when the light is red
a standard of behaviour and an obligation,24 and when a
legal official punishes law violation, according to Hart, he
takes the rule as his guide and the breach of the rule as
his reason and justification for punishing.25 Of course,
these statements of Hart were not primarily concerned with
the idea of content-independence, but rather more generally sought to highlight the normative dimension of law and
counter the type of reductionism that analyzes the legal
practice in terms of behavioral regularities alone. Nevertheless, by recognizing that legal rules are regarded as reasons
while omitting reference to the merits of the required action
or to substantive law-following values, Hart lends implicit
support to what he elsewhere explicitly calls content-independence, at least as far as it figures in descriptive reason-statements.26
22 Hart, H. L. A., The Concept of Law, 2nd. ed., Oxford, Oxford University Press,
1994, pp. 11, 55-6, 89-90.
23 Ibidem, p. 116-7.
24 Ibidem, p. 90.
25 Ibidem, p. 11 (emphases omitted). See also related comments at ibidem, p. 55.
26 Hart, supra note 1, pp. 243-68. Hart acknowledges that normative acceptance of law may (though need not) be based on ones recognition of the moral value
of the system (ibidem, pp. 256, 265-6; Hart, supra note 22, pp. 203, 257). The distinction I will draw between actions and attitudes (in text accompanying notes
188
But even this descriptive statement about (strong) content-independence may be challenged. It may be challenged
on grounds that were usefully highlighted by one of Neil
MacCormicks arguments regarding Harts account.27
MacCormick acknowledges that participants in the legal
practice who share the internal point of view typically take
its rules to provide them with reasons for action. Conversely to Hart, however, he stresses that acceptance of legal rules from the internal perspective is not unreasoned,
but rather must be, or at least normally is, underpinned by
a judgment on the part of participants about the value and
justice of the system: e.g. their recognition that the system
beneficially contributes to certainty and predictability, that
the power exercised by lawmakers derives legitimacy from
the fact of their being democratically elected, and that laws
are enacted through a procedure which is by and large fair
and just.28 If, as MacCormick observes, such substantive
factors undergird the acceptance of rules by their subjects,
this may be thought to show that rules are not treated as
content-independent reasons in the strong sense, i.e. in the
sense that signifies independence of those substantive factors. Now, I will accept the kernel of MacCormicks claim,
but will suggest that its effect is merely to qualify, rather
than utterly to refute the notion of strong content-independence as a description of how law operates in peoples
30-37) can reconcile such morally based acceptance of law with Harts endorsement of strong content-independence: Hart can be taken to mean that even when
peoples law-abiding attitude is underpinned by a moral judgment, it tends to influence their actions independently of a case-by-case assessment of law-following
values, which means that law operates in their practical reasoning as a strongly
content-independent reason for action.
27 MacCormick, Neil, Legal Reasoning and Legal Theory, Oxford, Clarendon
Press, 1978, pp. 63-4, 139-40. See generally Smith, J. C., Legal Obligation, London,
Athlone, 1976, pp. 22-33; Dworkin, Ronald M., Taking Rights Seriously, London,
Duckworth, 1978, pp. 51-8; Finnis, John M., Natural Law and Natural Rights, Oxford, Clarendon Press, 1980, pp. 13-4; Finnis, John M., On Hart's Ways: Law as
Reason and as Fact, American Journal of Jurisprudence, vol. 52, 2007, pp. 25-53;
Perry, Stephen R., Hart's Methodological Positivism, in Coleman, Jules L. (ed.),
Hart's Postscript, Oxford, Oxford University Press, 2001, pp. 330-47.
28 MacCormick, ibidem, pp. 63-64, 139-40.
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190
32
I say tends because dispositions need not be permanent; people sometimes
abandon or change some of their dispositions. Doing so, however, may be difficult
and normally takes time. It is not done on a case-by-case basis.
33 To see this, it may be helpful to think of this law-abiding attitude in terms of
an inclination: on the one hand, it is not a simple, constantly malleable reflection of
substantive reasons for and against compliance as applicable in specific cases if
it were only that, there would be no point or distinct significance to calling it an inclination. On the other hand, being no more than an inclination, it stops short of
excluding relevant case-specific reasons and remains overridable by such reasons.
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Before I turn to explicate how precisely the attitude/action distinction bears on our question, it may be useful to
shed more light on the distinction itself by reference to an
example. I said that the envisaged law-abiding disposition
makes its influence felt independently of whether the reasons for having it, i.e. law-following values, apply to a particular action in a particular situation. One implication of
this is that those who are thus disposed to comply with law
may be led to perform actions which they would not perform if they were guided solely by the balance of reasons for
action. Consider, as a case in point, the frequently invoked
hypothetical of a traffic light in the desert.34 It runs (with
certain variations) along the following lines: you are driving
on a lonely road in the desert. You come to an intersection
where there is a red traffic light. The law prohibits driving
through a red light, but with a perfectly flat and desolate
landscape around you, you can tell that there are no other
vehicles or pedestrians within miles in any direction. It is
evident that an act of non-compliance on your part will not
be seen or discovered by anyone else. So it will not result in
your being punished and will not stimulate other actors
into disobedient behavior. Also suppose that given how
astute and strong-willed you are, or given other features of
your personality or condition running a red light in this
special situation will not weaken your resolve to comply
with the law in other circumstances. As many philosophers
acknowledge, in this type of situation there is no real reason (whether safety, coordination, or other) for you to stop
and wait for the light to turn green.35 And even if some
34 See Raz, Joseph, The Authority of Law, Oxford, Clarendon Press, 1979, p. 16;
Smith, M. B. E., Is There a Prima Facie Obligation to Obey the Law, Yale Law
Journal, vol. 82, pp. 950-76, at p. 971; Regan, Donald H., Law's Halo, Social Philosophy and Policy, vol. 4, 1986, pp. 15-30, at pp. 18-9; Hurd, Heidi M., Challenging Authority, Yale Law Journal, vol. 100, 1991, pp. 1611-77, at p. 1614;
Edmundson, supra note 3, pp. 12-34.
35 See, e.g., Smith, ibidem, p. 971 and Regan, ibidem, pp. 18-9. See also Alexander, Larry, Law and Exclusionary Reasons, Philosophical Topics, vol. 18, 1990,
pp. 5-22, at p. 8 (noting that in situations where I predict no effect on others behavior, no detection of my disobedience, and no sanctions, my reasons against A
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reason for action, though subjects adopt this attitude towards law (i.e. the attitude which implies that they treat it
as a strongly content-independent reason) due to reasons
which are not content-independent in the strong sense.38
Thus, the notion of strong content-independence may be
adequately used to describe the way things look from the
internal point of view insofar as reasons for action are concerned, but its explanatory force does not extend to reasons
for attitudes.
The following observations emerge from the analysis thus
far: (1) content-independent reasons can be understood in
either a strong sense (ascribing the reason to the mere fact
that law requires an action) or a weak sense (ascribing the
reason to substantive factors other than the nature and
merits of the action law requires). (2) While weakly content-independent reasons are an unproblematic notion,
strong content-independence is a more questionable concept whose plausibility turns, in part, on a further distinction: a distinction between evaluative statements about reasons (evaluating what reasons people have from a
normative perspective not limited to the internal assumptions of their practice) and descriptive statements about
reasons (describing the reasons participants in a certain
38 I do not wish to take sides here in the philosophical debate regarding
state-given and object-given reasons (to use Derek Parfits terminology): namely, I
will take no stance on whether the reasons I referred to in the main text above
should be classified as (state-given) reasons to have the relevant attitude or (object-given) reasons to try to bring it about that we have it or to cause ourselves to
have it. The wording I will be using mostly reason to adopt a disposition/attitude is, I think, reconcilable with either of these alternatives, and even when I
will use a less neutral formulation (such as reasons for attitudes), I will do so
merely for ease of reference. As for the above debate, see e.g. Parfit, Derek, Reasons and Rationality, in Egonsson, Dan et al. (eds.), Exploring Practical Philosophy,
Burlington, VT, Ashgate, 2001, pp. 17-39; Dunn, Robert, Akratic Attitudes and
Rationality, Australasian Journal of Philosophy, vol. 70, 1992, pp. 24-39; Olson,
Jonas, Buck-Passing and the Wrong Kind of Reasons, Philosophical Quarterly,
vol. 54, 2004, pp. 295-300; Hieronymi, Pamela, The Wrong Kind of Reason, Journal of Philosophy, vol. 102, 2005, pp. 437-57; Piller, Christian, Content-Related
and Attitude-Related Reasons for Preferences, Philosophy, vol. 81, 2006, pp.
155-81; Morauta, James, In Defence of State-Based Reasons to Intend, Pacific
Philosophical Quarterly, vol. 91, 2010, pp. 208-28.
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i.e. one that makes sense of the latter in terms of the former? It appears to me, prima facie, that such an explanation is likely to exist. For it is highly improbable that the socially prevalent perception of laws normative force, as
developed over millennia and across many cultures, is the
result of an accidental human error. Even if that perception
is in some sense mistaken, there are likely to be good reasons why it developed the way it did. It is plausible that the
shape and content it came to have are such that fulfill
some valuable functions in social life. That said, it should
be clarified that these intuitive assumptions are not stated
here as a constitutive element of my argument or a premise
on which I seek to rely. Their only role is to serve as a background to what will be a self-contained argument about the
good reasons or valuable functions that may justify
treating legal requirements as strongly content-independent
reasons. I now turn to this argument.
I will initially put forth a basic hypothesis about the justification for treating law as a provider of strongly content-independent reasons. This hypothesis will be cast in a
rather general and abstract form, but will then be substantiated and filled out with more concrete content. The hypothesis is this: the subjects of a reasonably just legal system should treat its requirements as providing them with
strongly content-independent reasons for action (rather
than reasons that depend on content or on whether law-following values apply to their situation) because by so doing
they would be more likely to conform to substantive reasons that apply to them in the areas that law regulates.
Now, this justificatory hypothesis may strike a familiar
chord with readers of contemporary jurisprudence; it resonates, of course, with Razs normal justification thesis, according to which the normal way to establish that a person
has authority over another person involves showing that
the alleged subject is likely better to comply with reasons
which apply to him if he accepts the directives of the alleged authority as authoritatively binding and tries to follow
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them, rather than by trying to follow the reasons which apply to him directly.39 Notwithstanding their close affinity,
however, there are a number of pertinent respects in which
my justificatory hypothesis differs from Razs normal justification thesis: (1) the two do not seek to justify the same
thing. According to Raz, insofar as an alleged authority satisfies the condition stated in the normal justification thesis,
it gains the status of a legitimate authority, which means
that (to this extent) its directives become pre-emptive reasons, reasons for action that exclude some otherwise applicable reasons. This is significantly more than what my hypothesis seeks to establish: firstly, I do not suggest that
certain directives (or the fact that they were issued) are reasons, but only that it is desirable that, in our daily operation as subjects of the law, we treat them as reasons;40 secondly, my argument does not refer to pre-emptive reasons,
but rather to content-independent reasons. These are two
distinct concepts, for a reason can be independent of content without excluding any other reasons.41
(2) While the normal justification thesis states what Raz
conceives of as the (main) condition under which a government would acquire legitimate authority, it does not contend that governments, or even reasonably just governments, generally do satisfy that condition. In fact, in several
places Raz denies that they generally do as, for example,
when he says that political authorities are likely to have
more limited authority [in the legitimate sense] than the authority many, perhaps all of them, claim to have, and that
people generally believe they have.42 In contrast, my hyRaz, supra note 1, p. 53 (emphasis omitted). See also Green, supra note 1, p. 56.
See Alexander, supra note 35.
41 As noted, I have discussed Razs pre-emption thesis and exclusionary reasons conception elsewhere (Gur, supra note 14).
42 Raz, Joseph, The Problem of Authority, Minnesota Law Review, vol. 90,
2006, pp. 1003-44, at p. 1008. See also Raz, supra note 1, pp. 70-80, 99-104; Raz,
Joseph, Ethics in the Public Domain, rev'd paperback ed., Oxford, Clarendon Press,
1995, pp. 341, 347-50. Following his above-quoted comment Raz says: This still
requires explaining why people are so mistaken , and he adds in a footnote that
this is a point orally made to him by H. L. A. Hart (Raz, The Problem of Authority,
39
40
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ations of social coordination: for, firstly, the relative importance of coordination may vary with the context and type of
activity concerned; secondly, not all laws are equally conducive to goals of coordination; and, thirdly, even laws that
are in general conducive to coordination goals may, on occasion, fail to serve and even contravene these very goals.
Surely, the correctness of practical decisions partly depends on these variables. When we focus attention on differential expertise or social coordination, therefore, it is
hard to see why laws subjects should not treat its normative force as conditional upon these factors, i.e. as content-independent in the weak sense.
There are, however, other factors that emphatically militate against the mode of practical reasoning associated with
weak content-independence and recommend treating law as
a provider of strongly content-independent reasons. The
most significant of these factors, I will argue, is certain human biases and fallibilities to which we are commonly susceptible in our typical decision-making environment as
laws subjects.47 More particularly, I will advance the following twofold argument: (1) due to certain stimuli present in
the decision-making environment in which laws subjects
typically operate, an assessment of law-following values
which they carry out in this environment is likely to be influenced by certain biases pulling towards non-compliance;48 (2) the influence of those biases can be effectively
47 Another practical difficulty with the mode of reasoning associated with weak
content-independence is that carrying out a complete assessment of reasons for
compliance in each and every situation would require an exceedingly large amount
of time and effort on the assessors part, making this method of reasoning an extremely inefficient one.
48 Raz notes that one of the factors capable of establishing the legitimacy of authority is its having a steadier will less likely to be tainted by bias, weakness or impetuosity, less likely to be diverted from right reason by temptations and pressures (Raz, supra note 1, p. 75). Yet his account fails to accommodate the
implications of biases. As will become clear in the following paragraphs, the relevance of biases is pervasive: first, the biases pertinent to our question are common
human biases to which most of us, not only the unwise or reckless, are susceptible
when operating in our typical decision-making environment as laws subjects; second, laws aptness as measure against those biases is primarily a function of basic
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counteracted by adopting an attitude which involves treating law itself as a reason for action independently of ones
assessment of law-following values as applicable to the situation at hand:49 precisely because this perceived reason
operates independently of ones assessment of law-following
values i.e. operates as a strongly content-independent
reason it remains free from the biases which affect that
assessment and can effectively counterbalance those biases.50
What biases, then, are prone to influence an assessment
of law-following values made by subjects in their typical decision-making environment? Since I have comprehensively
discussed these biases elsewhere, herein I will confine myself to a relatively brief account focusing on three of them.51
Consider, first, the tendency known to psychologists as
self-enhancement bias or the better-than-average effect:52
structural features commonly present in legal systems, e.g. the generality and prospective character of legal enactments. All this suggests that, under reasonably
just and competent lawmaking institutions, as those found in familiar legal systems, the condition stated in the normal justification thesis is fulfilled widely and
generally, rather than in the narrow and piecemeal manner Raz envisages.
49
I do not suggest that law is a suitable measure against the relevant biases because lawmaking officials possess personal qualities that make them bias-immune
individuals (which is, of course, not the case). Rather, law can fulfill this role primarily because the settings and mode of decision-making in which lawmakers typically operate are significantly less susceptible to those biases than the settings and
mode of decision-making in which subjects typically operate.
50 Cannot the relevant biases be effectively counteracted by the legal systems
generating prudential reasons for compliance in the form of punishment? While
generating prudential reasons for compliance is an essential part of the solution,
the impracticality and unattractiveness of a system of governance that would depend for its efficacy solely or mainly on the use of coercive force and on the fear of
punishment explain the need for another measure against common biases.
51 Manuscript on file with author (forthcoming, Oxford University Press, 2013).
52 See, e.g., Baumhart, Raymond, An Honest Profit: What Businessmen Say
About Ethics in Business, New York, Holt, Rinehart and Winston, 1968, pp. 20-5;
Larwood, Laurie and Whittaker, William, Managerial Myopia: Self-Serving Biases
in Organizational Planning, Journal of Applied Psychology, vol. 62, 1977, pp.
194-8; Svenson, Ola, Are We All Less Risky and More Skillful Than Our Fellow
Drivers, Acta Psychologica, vol. 47, 1981, pp. 143-8; Brown, Jonathon D., Evaluations of Self and Others: Self-Enhancement Biases in Social Judgments, Social
Cognition, vol. 4, 1986; Kruger, Justin and Dunning, David, Unskilled and Unaware of it: How Difficulties in Recognizing One's Own Incompetence Lead to In-
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V. CONCLUSION
Typical reactions to the idea of content-independent reasons range from unhesitant approval to outright dismissal;
some think it illuminatingly captures a central property of
laws normativity and authoritative nature, whereas others
find it impossible to understand how mere artifacts of the
human will can turn something into a reason independently of its substance and value. In this paper, I have suggested that this disparity of reactions results from insufficient attention to the relevance of three distinctions. The
first distinction is between two different senses of content-independence, which I referred to as weak and strong
content-independence. Weakly content-independent reasons are reasons that do not depend on the nature and
merit of the action that law requires. Strongly content-independent reasons are reasons that do not depend on the nature and merit of the action law requires or on any other
substantive law-following values (e.g. values associated
with social coordination, order and stability, or fair play
considerations). The latter rendering implies that the mere
fact that law requires an action must itself count in the
practical reasoning of its subjects.
In light of this distinction, it became transparent that
what initially appeared to be a general objection against
content-independence is in fact an objection against only
one sense of content-independence, i.e. the strong sense.
The weak sense, on the other hand, does not seem to impliwould serve any desirable substantive goals (e.g. this requirement is meant to facilitate coordination; but there is no one around; so by complying I would be coordinating with no one ). In contrast, the second actor treats legal requirements
themselves as reasons for action, his inclination to comply with law is not contingent on situational assessments of the applicability of law-following values (though
may occasionally be overridden by sufficiently compelling and clear reasons to the
contrary). Second, the two attitudes are not extensionally equivalent in terms of
the outcomes they produce; there are cases in which they diverge. Take again the
deserted traffic light example discussed above; in this situation a correct assessment of the balance of reasons for action (including law-following values) as applicable to the case at hand recommends running the red light, but an actor who
treats legal requirements themselves as reasons may well stop.
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PROBLEMA
Anuario de Filosofa
y Teora del Derecho
Resumen:
El concepto de obligacin jurdica es completamente central para la
prctica jurdica. Sin embargo, el positivismo carece de una explicacin
integral de la obligacin jurdica, puesto que se concentra solamente en
el reconocimiento de obligaciones de segundo orden que recaen sobre los
oficiales, y no explican las obligaciones jurdicas de primer orden que recaen sobre los ciudadanos. Cuando las obligaciones jurdicas se relacionan conceptualmente con normas vlidas jurdicamente, el error de no
tener una explicacin integral de la obligacin jurdica pone en crisis la
teora positivista de la validez jurdica. En este ensayo se desarrolla la
explicacin hartiana de la obligacin social y se complementa su explicacin de las obligaciones jurdicas de segundo orden del oficial en su calidad de oficial con una explicacin de la obligacin de primer orden de los
ciudadanos. Esta ltima se constituye, argumenta el autor, por la presin social en la forma de la autorizacin que tiene el Estado de echar a
andar la maquinaria coercitiva si no se cumple con la obligacin.
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Palabras clave:
Obligacin jurdica, validez jurdica, coercin, positivismo jurdico, teora del derecho.
Abstract:
The concept of legal obligation is utterly central to legal practice. But positivism lacks a comprehensive account of legal obligation, focusing only on
the second-order recognition obligations of officials with no account of the
first-order legal obligations of citizen. As legal obligations are conceptually
related to legally valid norms, this failure calls into question positivisms
theory of legal validity. In this essay, I develop Harts account of social obligation and supplement his account of the second-order legal obligations of
official qua official with an account of the first-order obligations of citizens.
The latter is constituted, I argue, by social pressure in the form of the authorization of the states coercive machinery for non-compliance.
Keywords:
Legal Obligation, Legal Validity, Coercion, Legal Positivism, Legal Theory.
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INTRODUCTION
Perhaps no concept is more central to legal practice than
that of legal obligation. Statutes, case law, and legal arguments are characteristically framed in terms of what some
person or class of persons is obligated to do. Such practices presuppose that legal norms at least those making
certain actions mandatory regulate behavior by creating
legal obligations. Law characteristically regulates behavior
by creating obligations.
Both officials and citizens are subjects of legal obligations. Citizens are obligated to honor their contracts and to
refrain from violence under most circumstances; these are
first-order obligations defined by primary norms. Judges
are obligated to decide cases under the relevant norms;
these are second-order obligations (usually) created by recognition norms.
Hart appears to have at least the beginnings of a comprehensive theory of legal obligation. As is well known, Hart
believes that legal obligation is a form of social obligation
and that social obligations arise when accepted norms are
thought sufficiently important to back with social pressure
to conform. The second-order legal obligations of officials
are explained by their taking the internal point of view towards the rule of recognition. Although he rejected Austins
sanction theory of obligation as not accurately expressing
either the sense in which civil law binds or the sense in
which officials are bound, he seemed to intimate that
first-order legal obligations of citizens are explained by the
availability of institutional coercive mechanisms for enforcing first-order legal norms against citizens. As Hart puts
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the point, the typical form of legal pressure may very well
be said to consist in such threats [of physical punishment
or unpleasant consequences] (CL 179, 180).
In this essay, I wish to develop what I take to be Harts
account of social obligation and supplement his account of
the second-order legal obligations of official in their capacities as official with an account of the first-order obligations
of citizens. The latter is constituted, I argue, by social pressure in the form of the authorization of the states coercive
machinery for non-compliance.
At the outset, it is important to understand that there is
a difference between the authorization of coercive enforcement mechanisms and the application of such mechanism
in a case of non-compliance. These are two distinct notions.
The idea that such mechanism are authorized for non-compliance simply means that officials have authority to use
these mechanisms as legally justified responses to noncompliance. The idea that such mechanism are applied
simply means that those coercive mechanisms have been
used against someone on the ground that he failed to comply. But it is important to note that this does not entail
even that the use of such mechanisms are legally justified
as one would expect if legal mistakes are possible. The
authorization of coercive enforcement of a legal norm provides a legal justification for the appropriate application of
the relevant mechanism for non-compliance with the norm.
One might object that the violation of a legal obligation
justifies the application of coercive mechanisms and thus
that a legal obligation cannot be constituted by coercive enforcement applications.1 This misunderstands the thesis of
the paper. The claim being defended here is that the authorization of such mechanisms for non-compliance is, in part,
what constitutes a legal norm as binding and hence legally
obligatory and thus provides the justification for application
in genuine cases of non-compliance. The obligation is constituted, in part, by the authorization of such mechanisms
1
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constrains the behavior of citizens by creating such obligations. The law does not generally traffic in weaker oughts
that encourage behavior without making it mandatory in
some sense. Legislative enactments that do not create obligations are not actionable and cannot support a claim for
damages or punitive measures.
This is the view that Hart takes. Hart observes, for example, that Austin correctly assumes that systems of law necessarily create some legal obligations:
[T]he theory of law as coercive orders, notwithstanding its errors, started from the perfectly correct appreciation of the
fact that where there is law, there human conduct is made
in some sense non-optional or obligatory. In choosing this
starting point the theory was well inspired, and in building
up a new account of law in terms of the interplay of primary
and secondary rules we too shall start from the same idea.3
3 H. L. A. Hart, The Concept of Law, Rev. ed. (Oxford: Oxford University Press,
1994), 82; emphasis added. Hereinafter CL.
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exceptions; however, particularists are not skeptics about morality or about the idea that we have moral obligations. A
theory that purports simply to articulate the content of the
general concept-term obligation should not have controversial substantive implications about morality.
What we can say, however, is that obligations are associated with prescriptions, which include claims claims about
what someone (or some class of persons) ought to do in some
state of affairs and norms. Obligations arise only where
there are prescriptions that guide and enable the appraisal of
human acts. If I have an obligation to do A at t, then there is
some prescription that either expresses or implies that I
ought to do A at t. That is, it is a necessary condition for
someones being obligated to perform some act that there is a
prescription that expresses an obligation owed by that person
to perform that act.
Not every prescription expresses or implies an obligation.
Although all prescriptions purport to commend some behavior (or abstinence), not all prescriptions require them; there
are things I ought to do that I am not obligated to do. There
are, for example, prudential norms that, other things being
equal, express the idea that one ought to exercise regularly,
but those norms do not create or express obligations because
prudential norms are prescriptive but do not create requirements or obligations in any meaningful sense and therefore
could not be mandatory in the relevant sense. The only prescriptions that create or express obligations are mandatory
prescriptions i.e., prescriptions that require some act.
It therefore appears to be a necessary condition for P to be
obligated to do a that there is a mandatory prescription that
requires that P do a. If there is no mandatory prescription requiring a, then there is no obligation to perform a; the claim
that a is obligatory but not required by a mandatory prescription seems self-contradictory. Obligations are thus correlated with mandatory prescriptions.
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2. Obligations as Reasons
Obligations are commonly thought to correlate with reasons. On this view, the claim that X has an obligation to do
a implies that X has a reason to do a.6 If Y asks X for a justification for Xs doing a, X was obligated to do a, if true,
is always relevant in assessing whether doing a was justified from the standpoint of practical rationality.
The reason can be moral, but need not be. Some obligations are associated with moral reasons but not all obligations are. If, as many theorists believe, it is not true that
the status of a norm as law does not afford a prima facie
moral reason to obey it even in reasonably just states, then
it is reasonable to think that one does not have even a
prima facie moral reason to obey wicked laws that create legal obligations. There are clearly other kinds of reasons,
such as prudential although the number of different
types of basic reason (i.e., reasons that are irreducible to
other reasons) are limited.
Indeed, it is very difficult to think of any other basic reasons than prudential and moral reasons. Perhaps there are
aesthetic reasons as well. But if there are no other basic
reasons, then every other kind of reason, including legal
reasons, will ultimately be compound in character, ultimately constituted by some combination of members of the
set of basic reasons.
The reason might be conclusive, but it need not be. It
seems that, as an objective matter of practical rationality,
we have a conclusive reason for doing what we are morally
obligated to do all things considered. I have a reason not to
torture another innocent person no matter what else might
be true and hence a conclusive reason for not doing so. But
whatever prudential reason Nazis may have had to do mor6 Not everyone accepts this view. For example, Scott Shapiro believes that obligations merely purport create or be reasons. On his view, there can be obligations
that neither create nor are identical to reasons. The argument of this paper, however, depends on the denial of this view, which I cannot defend here.
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7 It is worth noting here that ordinary talk about law (and the corresponding
legal practices) presuppose that one can have a reason independent of ones mental states, which is incompatible with reasons-internalism. According to the internalist, there are no reasons that are external to the agents mental states; an agent
has a reason for doing P if and only if the agent instantiates the appropriate mental
state usually a belief-desire pair. While the assumption that internalism is false
is controversial, I am concerned with giving a conceptual account that harmonizes
with our ordinary law talk and legal practices, which presupposes that there are
other kinds of reasons than simply the belief-desire pairs. Ordinary talk does not
imply the denial of such reasons but characterizes such reasons as subjective. Ordinary talk and legal practice seem to presuppose that moral and legal reasons are
objective in character. Internalism would entail something like an error theory of
law. That might ultimately be correct, but it takes an argument to establish that.
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obligation applicable in legal practice must itself be explicable in terms of social practices. Legal obligation, then, is a
species of social obligation.11 A full explanation of the concept of legal obligation, then, requires an explanation of the
concept of social obligation, which must harmonize with
the explication of the general concept of obligation. Harts
account of social obligation is developed below.
1. Social Prescriptions
The first element is straightforward. Although not every
social norm gives rise to a social obligation (e.g., some create social powers), social obligations arise under general social prescriptions or social norms, which are created, as
Coleman puts it, by a convergence of attitude and behavior.
Persons in the group converge on taking the internal point
of view towards the norm, accepting it as a standard that
governs the behavior of people in the group, and generally
conform to its requirements. Thus, if people in the group
(1) self-consciously accept the norm (this need not be for
moral reasons); (2) generally conform to the norm; and
(3) take a critical reflective attitude toward the norm using it to evaluate the behavior of other members of the
group, then it is, on Harts view, a social norm governing
behavior in the group.
2. Acceptance and Exclusionary Norms
Taking the internal point of view towards a mandatory
norm, on Harts view, involves regarding oneself and others
in the relevant group as being obligated by the rule. Acceptance of such a norm involves some sort of durable commitment to subject ones own behavior to governance of the
rule and to evaluate the behaviors of other people according
to the rule. Someone who genuinely commits to subjecting
11 It is unlikely that social obligations create social reasons that are basic (or irreducible) in character. See note 7, above.
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which is related to two factors: (1) the acceptance of the social norm; and (2) the belief that the norm is important because necessary to the maintenance of social life or some
highly prized feature of it (CL 87).
Harts explanation of social obligation can be summed up
as follows:
Hartian Theory of Social Obligation (HTSO): X has a social
obligation to do p if and only if (1) members of the relevant
group converge in attitude and behavior on a norm N governing X that requires X to do p; and (2) N is supported by significant social pressure and (3) because N is thought important because necessary to the maintenance of social life or
some highly prized feature of it.
13 As Hart puts this important point, [t]he fact that rules of obligation are generally supported by serious social pressure does not entail that to have an obligation under the rules is to experience feelings of compulsion or pressure (CL 88).
231
particular way does not entail any claim about the obligations of other people.
Whether officials can obligate citizens depends, in part,
on to whom the officials owe their obligations. If the officials obligations under the rule of recognition are owed to
citizens, then it is reasonable to think that citizens are obligated by the norms valid under it. Given the logic of obligation, it is hard to make sense of the idea that a judge owes
an obligation to all citizens to incarcerate citizens who violate norm N if N does not obligate citizens. It would be odd
if the concept of legal obligation behaved this way.
But Harts practice theory implies only that the obligations owed by group-members are owed to other members.
Hart has nothing that would explain how obligations binding members of the group could be owed to anyone outside
it; there is nothing in the practice theory as it explains the
obligations of officials that entails that the obligation is
owed to citizens. All the theory claims is that officials owe
these obligations to one another and this says nothing
that would justify thinking official acts obligate citizens.
Of course, non-members might be obligated to follow
rules of groups to which they do not belong. Non-Muslims
are required to abide by certain conventions that Muslims
have accepted regarding behavior inside mosques, but this
is explained by other standards to which non-Muslims are
subject; non-Muslims have a duty to respect those conventions when in mosques. Since admission to mosques is conditioned on consent to abide by certain standards, one
shouldnt enter a mosque unless prepared to abide by the
relevant standards.
3. Coercive Enforcement and First-order Legal Obligation
Once law is explained in terms of a social rule of recognition accepted by officials in an efficacious legal system, citizen obligation in modern municipal legal systems seems
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best explained in terms of the authorization of formal institutional mechanisms of coercive enforcement. The idea here
is not that coercive enforcement of a norm, by itself, constitutes the norm as obligatory; rather, it is that coercive enforcement of a social norm in a system that satisfies certain
properties including the institutionalization of the relevant set of norms constitutes it as legally obligatory. Coercive enforcement of a legal norm constitutes it as legally
obligatory upon citizens, in part, because (1) the norm belongs to an institutionalized system of norms (2) grounded
in recognition norms accepted and practiced by officials
and is (3) minimally efficacious in regulating citizen behavior.
Here it is important to emphasize the normative dimension of this practice. While officials of the legal system need
not regard a first-order law as a moral justification for enforcing the law against non-compliance, they regard it as a
legal reason or justification (i.e., a reason that is internal in
the sense that it is within the system of law) for such enforcement. Obligation is explained by a normative web of
practices that includes the legal authorization of formal enforcement mechanisms as a legal justification for applying
them to citizens for non-compliance.
Formal institutional enforcement should be distinguished
from sanctions. Enforcement sometimes involves punitive
intent, as it does in the case of a defendant who is being
prosecuted for murder under the criminal law. But it need
not involve such intent,14 as in the case of a judge ordering
damages for breach of contract.15 Such enforcement mech14 It is worth noting that Austin is careful to point this out: Considered as thus
abstracted from the command and the duty which it enforces, the evil to be incurred by disobedience is frequently styled a punishment. But, as punishments,
strictly so called, are only a class of sanctions, the term is too narrow to express the
meaning adequately (PJ 22).
15 As natural law theorist John Finnis puts it: Not all lawful coercion is by way
of sanction or punishment. Even the most developed legal systems rightly allow
the arrest of certain suspected offenders or potential offenders, and of persons and
things (e.g. ships) likely otherwise to escape due process of adjudication. Judgments may be executed, and some other classes of debts satisfied, by seizure, dis-
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siderations. Conscientious officials want to ensure that authoritative statements of law convey appropriate notice of
what is required. The terms must and shall, in contrast
to should and ought, signal that some behavior is
required and provide constructive notice to citizens that
courts have recourse to some coercive mechanisms though
such terms do not say anything about the nature or severity of such mechanisms.
Still, it is the availability or non-availability of coercive
mechanisms, and not the language in which a rule of law is
expressed, that ultimately determines whether that rule defines a legal obligation. When the language in which a legal
norm N is expressed and the availability of coercive enforcement mechanisms do not agree, it is the latter that determines whether N is fairly characterized as legally obligatory upon citizens.
2. Is Coercive Enforcement a Conceptually
Necessary Feature of Law?
Many theorists believe that coercive enforcement is a
conceptually necessary feature of law. Natural law theorists frequently acknowledge the central role coercion plays
in law. John Finnis, for example, observes that [l]aw needs
to be coercive (primarily by way of punitive sanctions, secondarily by way of preventive interventions and restraints).
Likewise, Ronald Dworkin believes the conceptual function
of law is to justify the states use of its police power and
hence that the law includes the moral principles that show
statutory and judicial law in their best moral light. Further, positivists, like Joseph Raz, also acknowledge the centrality of coercion in law: The three most general and important features of the law are that it is normative,
institutionalized, and coercive.19
19 Joseph Raz, The Concept of a Legal System, 2nd ed. (Oxford: Clarendon
Press, 1980), 3. Hereinafter CLS. Raz has changed his view on this issue. See Raz,
Practical Norms and Reason (Princeton: Princeton University Press, 1990).
237
238
239
case that we have a moral reason to obey legal requirements; indeed, many theorists are even skeptical about the
idea that law in a legitimate state necessarily gives rise to a
moral obligation to obey. If this plausible view is correct,
then the fact that a mandatory legal norm creates a legal
obligation does not imply that it creates a moral obligation
to obey it or even that there is a prima facie moral reason
to obey it.
This harmonizes nicely with the theory of first-order legal
obligation defended here. The only reasons for action that
are necessarily provided by a legally obligatory norm, if the
theory here is correct, are prudential in character. Clearly,
first-order legal obligation would be prudentially normative
on the story offered here: it is not in the interests of a person, other things being equal, to be subject to the sorts of
coercive mechanisms that are used to enforce mandatory
legal norms. Equally clearly, first-order legal obligation is
not necessarily morally normative on this story: there is
nothing in the claim that the state has backed a norm with
coercive enforcement mechanisms that would imply that
there is even a prima facie moral reason to obey that norm.
This is exactly what we would expect if the prevailing
view that law does not necessarily give rise to prima facie
moral reasons to obey the law is correct. An analysis of legal obligation that implies we have even a prima facie moral
reason to satisfy our legal obligations would be inconsistent
with this view. The fact that, on the analysis offered here,
legal obligation is not necessarily morally normative is a
strong point in its favor.
Nevertheless, it is important to note that legal obligation
is, as a conceptual matter, normative on the analysis offered here. Insofar as people have a prima facie prudential
reason to avoid having a norm coercively enforced against
them, they have a prima facie prudential reason to obey any
mandatory legal norm. But this coheres nicely with the prevailing view that it is a conceptual truth that law is norma-
241
23
242
PROBLEMA
Anuario de Filosofa
y Teora del Derecho
Resumen:
El concepto de derecho de H. L. A. Hart es un clsico moderno de la teora jurdica. Pero tambin es relevante para la filosofa moral y social. En
este artculo se argumenta que las crticas de Hart hacia Austin y Bentham, as como sus teoras sobre la naturaleza del derecho, la moral y la
coercin, retoman una tradicin de pensamiento iniciada por David
Hume. Adems, la filosofa social de Hart tiene implicaciones normativas
interesantes. Este artculo se concentrar en un solo ejemplo: el concepto de libertad. A pesar de que Hart no analiza el concepto de libertad en
su libro, el autor sostiene que su anlisis del derecho puede ayudarnos a
comprender esa nocin tan altamente discutida.
Palabras clave:
Teora jurdica, filosofa social, filosofa moral, libertad, H. L. A.
Hart.
Abstract:
H. L. A. Harts The Concept of Law is a modern classic of legal theory.
However, it is also relevant to moral and social philosophy. Here, it is argued that Harts criticism of Austin and Bentham, and his views on the nature of law, morality and coercion continue the tradition initiated by David
* Professor of Practical Philosophy. Department of Behavioural Sciences and
Philosophy. 20014-University of Turku Finland. [email protected].
243
EERIK LAGERSPETZ
Hume. Moreover, Harts social philosophy has interesting normative implications. I shall focus on one single example: the concept of liberty. Although
Hart does not analyze the concept of liberty in his book, I argue that his
analysis of law may help us to understand that highly contested notion.
Keywords:
Legal Theory, Social Philosophy, Moral Philosophy, Liberty,
H. L. A. Hart.
244
SUMMARY: I. Introduction. II. Two Theories of Law and Coercion. III. The Third Theory: Hume and Hart.
IV. Law and Liberty. V. Bibliography.
I. INTRODUCTION
H. L. A. Harts The Concept of Law (hereafter CL) is undeniably a masterpiece of the twentieth-century philosophy of
law. However, in the preface of the book, Hart defines the
scope of his work in wider terms:
My aim in this book has been to further the understanding
of law, coercion, and morality as different but related social
phenomena. Though it is primarily designed for the student
of jurisprudence, I hope it may also be of use to those whose
chief interests are in moral or political philosophy, or in sociology, rather than in law.1
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EERIK LAGERSPETZ
1996.
3 Bentham, Jeremy, Selected Writings on Utilitarianism. Hertfordshire, Great
Britain, Wordsworth Classics, 2001.
4 Austin, John, The Province of Jurisprudence Determined, Cambridge, Great
Britain, Cambridge University Press, 1995.
5 Olivecrona, Karl, Law as Fact, London, Great Britain, Oxford University
Press, 1939.
246
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EERIK LAGERSPETZ
248
249
EERIK LAGERSPETZ
250
251
EERIK LAGERSPETZ
252
253
EERIK LAGERSPETZ
254
only because he believes that C and D obey them voluntarily and are willing to punish him if he refuses to obey.
The same is true of C and D, respectively. All the subjects
of A obey him only because of fear. Nevertheless, the force
is on their side: by acting as a coalition, they could easily
overthrow A. Only the pluralistic ignorance (to use a sociological term) prevents this. No loyal Praetorian Guard is
needed to explain As power over his subjects.
Still, the Praetorian Guard Argument is a plausible empirical conjecture. It is unlikely that a large modern society
could, in the long run, be governed only by coercion. Harts
methodology in CL is to focus on the central cases rather
than to define concepts through necessary and sufficient
conditions.33 This kind of approach is, I think necessary in
social philosophy and, more generally, in the human sciences. (An example to illustrate this is the notion of culture. It is certainly indispensable in these disciplines, but
how to define it precisely without depriving its descriptive
usefulness?) This approach would allow Hart to accept a
purely coercive regime imagined by Kavka and others as a
limiting case, but still insist that in the cases relevant to
legal and social theory his central thesis holds:
Sanctions are therefore required not as the normal motive
for obedience, but as a guarantee that those who would voluntarily obey shall not sacrificed to those who would not. To
obey, without this, would be to risk going to the wall. Given
this standing danger, what reason demands is voluntary
co-operation in a coercive system.34
To clarify, while the presence of sanctions remains psychologically important, it need not be important because
people fear sanctions. Rather, the mutual awareness of the
presence of sanctions is important because it maintains
voluntary cooperation. The possibility to rely on sanctions
has two important effects. First, it diminishes uncertainty:
33
34
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EERIK LAGERSPETZ
256
257
EERIK LAGERSPETZ
258
259
EERIK LAGERSPETZ
as unfreedom is, I think, fully in accordance with the normal use of the word freedom. Berlin and his followers
stress that inabilities do not limit our freedom. This is
prima facie a plausible claim. For example, if I am free to
walk on public pathway, my freedom is not diminished if I
during my walk break my leg and become unable to continue. But a legal inability is an inability of a different kind.
It, unlike my injury, is an intended result of the action (or
inaction) of the power-holders and can be removed just by
amending the rules.
If this argument is correct, important aspects of our politically relevant liberty the liberty to make contracts,
marry etc. is, contra Bentham, produced by law. Laws
which confer us powers to do these and similar things need
not to be abrogative to anyones liberty. Liberty that is,
the kind of liberty which should interest even liberals is
not a purely zero-sum notion, and it cannot be defined
merely as the silence of laws. Certainly, the freedom to
make contracts, or otherwise establish mutually beneficial
relations with other people is paradigmatically a liberal issue. If this freedom cannot be defined in terms of negative
liberty, there seems to be no reason to claim that it is the
liberal notion.
I am interested in this argument mainly because it is so
simple. Unlike most criticisms of the negative concept of
liberty, it does not presuppose any particular theory of human nature, or morality, or society. It accepts a background supposition made by Hobbes and Bentham: the
concept of (politically relevant) liberty is tied to the concept
of law. There is, for example, no need to postulate the
higher and lower selves, a postulate accepted by the Idealists and criticized by Berlin. Nevertheless, the argument
has interesting further implications. As Hart says in CL, the
role of law in our lives is far more complicated than that
suggested by the IC-view. Bentham though that the only
connection between liberty and law is that law can make
liberties more secure, by protecting us from the intrusions
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EERIK LAGERSPETZ
of others. This is one link between liberty and law. But our
example reveals another connection. On the one hand, law
can make us freer by enabling us to do things which cannot
be done outside the legal context. It can also extend the total sum of our liberties by giving us new legal abilities. On
the other hand, law can also diminish our liberty without
constraining us by depriving some of our legally defined
powers. The topology of the (politically relevant) freedom is
much more complex than Hobbes and Bentham thought. If
our legally defined powers are a part of our liberty, it is not
clear what maximal liberty might mean. This might be considered as an argument against the inclusion of legally defined abilities. But it may also be considered as a limitation
of our ability to compare the amounts of freedom across
various legal systems.
The purpose of this brief exposition was to show that, after fifty years, H. L. A. Harts The Concept of Law is still
worth of reading, not only by those who are interested in
the philosophy of law in the narrow sense, but also, to
quote Hart once again, by all those whose chief interests
are in moral or political philosophy, or in sociology, rather
than in law.
V. BIBLIOGRAPHY
ARENDT, Hannah, The Crises of the Republic, New York, USA,
Harcourt, 1972.
AUSTIN, John, The Province of Jurisprudence Determined,
Cambridge, Great Britain, Cambridge University
Press, 1995.
BARNES, Barry, The Nature of Power, Oxford, Great Britain,
Polity Press, 1988.
BENTHAM, Jeremy, Selected Writings on Utilitarianism. Hertfordshire, Great Britain, Wordsworth Classics, 2001.
, Principles of the Civil Code. Part I Objects of the Civil
Law, in Bentham, Jeremy, Selected Writings on Utilita262
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264
PROBLEMA
Anuario de Filosofa
y Teora del Derecho
Resumen:
En este artculo se argumenta que la regla de reconocimiento, tal como
fuera concebida por Hart, es o bien un concepto redundante y en consecuencia intil o un concepto limitado en su poder explicativo. En
cualquier caso, se trata de un concepto cuyo alcance es, frente a los sistemas jurdicos contemporneos, mucho ms estrecho de lo que Hart
pudo imaginar. De igual modo se argumenta que la regla de reconocimiento, en alguna de sus posibles (y plausibles) reformulaciones, puede
tener a pesar de todo un papel significativo y no redundante, pero solamente si se emplea en un sentido radicalmente distinto al que propuso
Hart o que se propone en buena parte de la literatura positivista posthartiana.
Palabras clave:
Regla de reconocimiento, sistema jurdico, validez jurdica,
aplicabilidad, H. L. A. Hart.
Abstract:
I will argue that the rule of recognition, as it has been conceived by Hart, is
either a redundant, and hence mostly useless, concept, or a concept with
limited explanatory potential in either case, at best a concept whose
scope is, in contemporary legal systems, much narrower than Hart envis* Associate Professor of Legal Philosophy, University of Palermo giorgio.pino
@unipa.it, www.unipa.it/gpino.
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GIORGIO PINO
aged. I will also argue that the rule of recognition, in one of its possible
(and plausible) reformulations, can nevertheless play a significant, non-redundant role, but only if employed in a rather different way than the one
proposed by Hart, as well as by much of post-Hartian positivist literature.
Keywords:
Rule of Recognition, Legal System, Legal Validity, Applicability,
H. L. A. Hart.
266
I. TROUBLE IN PARADISE
The concept of a rule of recognition the ultimate rule
establishing the criteria of validity of the other rules of a
given legal system is notoriously one the most
long-standing and far-reaching contributions of H. L. A.
Hart to legal theory.1 It has attracted countless sympathetic
attempts of refinement and development, as much as harsh
criticism. At the same time, while Hart envisaged for the
rule of recognition a paramount clarifying role for legal theory and jurisprudence,2 his own exposition of the doctrine
of the rule of recognition is famously affected by some ambiguities and obscurities.
1 See M. Kramer, Where Law and Morality Meet, 104 (the idea of a rule of recognition is [o]ne of Harts greatest contributions to the philosophy of law); A.
Marmor, Philosophy of Law, 50 (No other idea is more closely associated with
Harts theory of law than the idea that legality is constituted by social rules of recognition).
Jules Coleman probably overstates the point though when he says that commitment to the rule of recognition, along with the separability thesis, is a defining feature of legal positivism (see Authority and Reason, 287, 316 fn 5). On the one
hand, if the rule of recognition is understood in a strictly Hartian sense, then as a
matter of fact it is not true that all legal positivists are committed to such a thesis
(one hardly needs to mention Austin, Kelsen, and Ross to this effect). On the other
hand, if the rule of recognition is understood in a very broad and very weak sense,
as a criterion whatsoever to delimitate the law, then not only legal positivism but
virtually every kind of legal theory uses or presupposes a rule of recognition of
some kind (some criterion to distinguish the law, as the subject matter of legal theory, from other phenomena such as religion, sheer violence, the game of chess,
etc.). Accordingly, Scott Shapiro rightly notes, for example, that in a sufficiently
weak sense also Law-as-Integrity amounts to a rule of recognition: see What Is
the Rule of Recognition (and Does It Exists)?, 267.
2 According to Hart, the existence of a socially practised rule of recognition
provides the foundations of a legal system (The Concept of Law, 100). Moreover,
Hart repeatedly claims, paraphrasing Austin, that the union of primary and secondary rules (among which there is the rule of recognition) is the key to the science
of jurisprudence: see The Concept of Law, 81; Positivism and the Separation of
Law and Morals, 59.
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270
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272
stitutional positions, but because they disagree in identifying the relevant rule of recognition. While radical disagreement between officials as to the rule of recognition
endangers the unity and the working itself of the legal
system, with consequences that can range from extreme
unpredictability in judicial decisions to revolution and civil
war, a degree of marginal disagreement, or disagreement at
lower levels in the chain of validity, can be easily accommodated in the conceptual framework of the rule of recognition; this is so because as Hart explicitly admits the
rule of recognition partakes of the open texture that affects
every rule and so it cannot be expected to provide a determinate answer to all cases.20 What degree of indeterminacy
is tolerable in the rule of recognition, or to put it differently,
what degree of overlap between the different rules of
recognition is needed, is a question that is not possible to
answer in abstract terms.
Third, does the rule of recognition compound all the criteria of validity for one legal system (regulates the validity of
all the kind of legal norms that belong to the system), or is
it an ultimate test of validity? Hart actually defines the rule
of recognition exactly as the ultimate criterion of validity,
meaning that the rule of recognition is not in turn validated
by other rules.21 Moreover, the rule of recognition needs not
specify the criteria of validity of all the norms of the system:
the criteria of validity for certain kind of norms (call them
N2) can be established not by the rule of recognition but by
some other norm N1, whose validity is established by the
rule of recognition (and so N2 is directly validated by N1,
and indirectly validated by the rule of recognition): so there
can be derivative criteria of validity, as it were, along with
the ultimate ones provided by the rule of recognition.22
20 The Concept of Law, 147-154. The issues discussed in this paragraph are
further explored by M. Kramer, Where Law and Morality Meet, 105-110.
21 The Concept of Law, 105-106.
22 J. Raz, The Identity of Legal Systems, 95; K. Greenawalt, The Rule of Recognition and the Constitution, 5-6; M. Kramer, Where Law and Morality Meet, 110; L.
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GIORGIO PINO
Fourth, in The Concept of Law Hart seems to be committed to the view that the rule of recognition instantiates pedigree only criteria of validity, meaning that validity is to be
assessed only by reference to formal, factual criteria.23 In
this way, the rule of recognition can establish the validity of
legal sources only, and not the validity of legal norms as
well a norm being the meaning, the content of a legal
source: norms are what the sources say, or are taken to say
by means of interpretation. A possible explanation for this
limitation on the criteria of validity in the rule of recognition is that Harts original account was probably influenced
by his semi-formalist theory of legal interpretation,24 according to which sources of law are capable of carrying a
core of settled, undisputable meaning, along with an area of
penumbra where there is some uncertainty and the interpreter is called upon to use some degree of interpretive discretion. Be that as it may, the source-based account of validity has notoriously been the main ground for Dworkins
original attack25 on Hartian positivism, for its alleged incapability of explaining the use of legal principles in adjudication. Responding to Dworkin, in the Postscript to the second edition of The Concept of Law, Hart eventually admitted
that reference to source-based only criteria of validity was
just a matter of emphasis: conceptually, his model is intended to accommodate also material, substantive criteria
of validity as opposed to only formal ones.26
Alexander and F. Schauer, Rules of Recognition, Constitutional Controversies,
and the Dizzying Dependence of Law on Acceptance, 177.
23 This emerges from the repeated references Hart makes to enactment and
similar concepts as the main test of validity; see The Concept of Law, 94, 95 (fact of
their having been enacted), 96, 100, 101, 148, 209 (valid by the formal tests).
Probably the only counter-example is at 204 (in some systems, as in the United
States, the ultimate criteria of validity explicitly incorporate principles of justice or
substantive moral values).
24 This is suggested by E. Diciotti, Regola di riconoscimento e concezione
retorica del diritto, 13.
25 See R. Dworkin, The Model of Rules I.
26 See Postscript, 250, 264-266. Hart anticipated this point also in Lon L.
Fuller: The Morality of Law, 361.
274
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GIORGIO PINO
276
(a) The rule of recognition as a duty-imposing rule.31 According to this interpretation, against Harts many explicit
statements that the rule of recognition is a secondary rule
(and so either a power-conferring rule, or a rule about other
rules, or both), the rule of recognition is in fact a primary,
duty-imposing rule: it imposes upon officials a duty to apply (valid) law; as a consequence, the rule of recognition imposes a duty whose content is the exercise of a power (judicial power). This interpretation is substantiated in a
number of ways. For instance, it is said that since Hart acknowledges only two kinds of rules (duty-imposing and
power-conferring), and since the rule of recognition is not
power-conferring, then it must be a duty-imposing rule.32
Another argument is that Hart explicitly provides an analysis of social rules as sources of obligations (the so-called
practice theory of rules)33 while he does not provide an
equally accurate analysis of the acceptance/existence of
power-conferring rules; and since the rule of recognition exists only as a social rule, then it must be a duty-imposing
rule.34 Moreover, the duty-imposing character of the rule of
recognition is regarded as the key (or at lest the first step)
towards explaining laws normativity.35
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278
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280
by modifying, or by erasing some legal norm). So the exercise of a legal power cannot consist only in an activity of
double-checking a list of criteria in order to ascertain, in a
purely speculative way, as it were, the validity of a putatively legal norm. The exercise of a legal power must necessarily yield some legal effect. So, if we want to qualify the
rule of recognition as a power-conferring rule, we are bound
to point at the legal effects that are engendered by the use
of the rule of recognition.
In short, then, exactly what kind of power would be
granted by the rule of recognition? Is it a power to identify
valid law?49 It is hard to understand that such a thing can
be the object of a legal power, unless one interprets it as a
power to constitutively declare what the law is (and so, the
law is what courts say it is). This idea has found independent support by some legal theorists,50 and it also bears at
least a grain of truth, but still raises several problems. For
one thing, it conflicts with the widespread intuition that
courts are law-applying, and not law-creating institution.
Moreover, Hart distinguishes between finality and infallibility of judicial decisions, arguing that, unless one is playing
the game of the scorers discretion, an authoritative ruling,
even a definitive one, might still be legally wrong: it can be
final, but it does not change the rules it purports to apply.51
In short, if the law is constitutively determined erga omnes
by judicial decisions (and this would be so because the rule
of recognition allegedly confers the legal power to declare
what the law is), this would be tantamount to saying that
the rule of recognition is a rule that authorizes the making
of new law, and therefore it would rather be a rule of
49 Sometimes Hart seems to express himself in this way. See The Concept of
Law, 95 (the rule of recognition is a rule for conclusive identification of the primary rules of obligation), and 97 (on the relation, and the partial overlap, between
rule of recognition and rules of adjudication).
50 I am referring here to Kelsens doctrine of the constitutive character of judicial decisions. See General Theory of Law and State, 135.
51 The Concept of Law, 141-147. See also J. Raz, Practical Reason and Norms,
137-141 (on systems of absolute discretion).
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52
53
282
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GIORGIO PINO
rule of recognition and rules of change, since if in the relevant legal system law-making power is itself regulated by
rules of change, then the rule of recognition of that system
will necessarily include reference to the operation of such
rules.57 But quite interestingly, at the various junctures
where Hart discusses of law-making powers, powers regulated by rules of change, he consistently relates the exercise
of those powers to the concept of validity (i.e. the purported
subject matter of the rule of recognition).58 According to
Hart, in the end, a valid rule is nothing more and nothing
less than a rule produced in accordance with the relevant
rules of change.
As a consequence, a rule of recognition conceived as a
list of criteria of validity does not add anything to what can
already be achieved using (even only in a cognitive, speculative way, as it were) the relevant rules of change of the
system.59 The rule of recognition becomes redundant it is
a needless reduplication60 of the rules of change.
At best, such a rule of recognition can provide the jurist
with something like a shortcut formulation, a synecdoche of
whatever criteria of validity are already in place through the
operation of the rules of change.
(g) The rule of recognition as a validating rule.61 On this
reading, the function of the rule of recognition is to answer
the question what is the reason for the validity of the highest rule of change of the system?.
57 The Concept of Law, 96. See also J. Raz, The Identity of Legal Systems, 95
(all the laws conferring legislative powers [] determine criteria of validity).
58 The Concept of Law, 31, 68-70, 72, 106, 148.
59 See N. Bobbio, Norme secondarie; N. MacCormick, H. L. A. Hart, 114-115; J.
Waldron, Who Needs Rules of Recognition?; S. Perry, Where Have All the Powers
Gone? Hartian Rules of Recognition, Noncognitivism, and the Constitutional and
Jurisprudential Foundations of Law, 307-308; A. Marmor, Philosophy of Law, 49
fn 20 (conceding that a criteria-of-validity definition of the rule of recognition conflates it into a rule of change).
60 Indeed, so Hart epitomized Kelsens Grundnorm: see The Concept of Law,
293.
61 J. Finnis, On Harts Ways: Law as Reason and as Fact, 44.
284
285
GIORGIO PINO
286
68 A rich comparative analysis is in N. MacCormick, R. Summers (eds.), Interpreting Precedents: A Comparative Study; and also J. Bell, Comparing Precedent.
69 Hart himself seems to embrace such a distinction: see The Concept of Law,
295; see also at 153-154, referring to the possibility that courts manipulate the
rule of recognition at its fringes.
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288
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ordering of interpretive methodologies:76 the rule of recognition will include the preference for some interpretive methodology over others, or possibly even a ban on certain interpretive methodologies.
Fourth, the rule of recognition, as here understood, is the
key concept structuring the job of law-applying institutions
it directs them in accomplishing their institutional duties,
it compounds the reasons judges and officials generally
may have to apply the law. As such, it is normally the object of an ethical-political acceptance. Normally, officials
adopt a certain rule of recognition because that rule of recognition reflects their fundamental, and sometimes even
unstated as the case may be, ideals of political legitimacy.
The rule of recognition is a concept compounding the officials legal ideology.77 Officials follow it, they are committed
to it normally on moral grounds, because that rule of recognition (as here understood) is coherent, or is as coherent as
it can be, with their fundamental assumptions of political
legitimacy.78 The repeated normalcy qualification introduced above is intended to embrace the not entirely unrealistic case of officials who act on purely self-interested, prudential grounds, as well as that of the conformist ones.
76 Many commentators have suggested that the criteria of validity provided by
the rule of recognition should be supplemented with criteria of interpretation: see
for instance N. Bobbio, Norme primarie e secondarie, 187-188; K. Greenawalt,
The Rule of Recognition and the Constitution, 31-35; W. Waluchow, Inclusive Legal Positivism, 76 (on secondary rules of interpretation); E. Diciotti, Regola di
riconoscimento e concezione retorica del diritto, 11-16; and compare the concept
of meta-interpretation in S. Shapiro, Legality, 304-306 and passim.
77 I use here a concept analogous to that of legal or normative ideology deployed by A. Ross, On Law and Justice, 75-76 (it consists of directives which do not
directly concern the manner in which a legal dispute is to be settled but indicate
the way in which a judge shall proceed in order to discover the directive or directives decisive for the question at issue). A quite similar concept (il principio
fondamentale) is carved out also by U. Scarpelli, Cos il positivismo giuridico, ch
VII.
78 Cf N. MacCormick, Legal Reasoning and Legal Theory, 63-64, 139-140 (what
must be essential to the internal aspect of the rule of recognition is some conscious commitment to pursuing the political values which are perceived as underpinning it); J. Raz, On the Authority and Interpretation of Constitutions: Some
Preliminaries, 334 (the rule of recognition is a normative practice).
290
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292
originalist, textualist, and living-tree approaches to constitutional interpretation, exactly in this way as attempts at
implementing (and asserting the superiority of) partly different rules of recognitions. They boil down to different ways to
identify (part of) the law that has to be applied by courts.86
On the whole, the resulting image of the legal system resembles less a pyramid than Neuraths boat.
The rule of recognition, then, far from being a list of criteria of validity, is the range of criteria and considerations
that guide the judge in his law-applying functions: it can
direct the judge to the application of valid legal norms or,
as the case may be, towards the application of some other
kind of standard, or even to the application of an extra-legal
norm; and it will include also the preference for some interpretive methodology. On the whole, in contemporary, complex legal systems, product of long historical stratification,
with multiple sources, and complicated interactions with
other normative systems (such as foreign legal systems, international organizations, and so on) it is quite implausible
that the rule of recognition resemble anything like a
well-structured, axiomatic set of criteria; more likely, as
Jeremy Waldron says, it will work as an array of
(defeasible) normative considerations,87 that will work more
or less in the way of the search for a reflective equilibrium.
Still, this normative array will surely be recognizable, and
its operations even predictable, to a certain extent: it will
represent the way in which officials conceive of their institutional role, and the way in which they regularly carry it on.
V. BIBLIOGRAPHY
ALEXANDER, L. and SCHAUER, F., Rules of Recognition,
Constitutional Controversies, and the Dizzying De86 A similar point is developed by L. Alexander and F. Schauer, Rules of Recognition, Constitutional Controversies, and the Dizzying Dependence of Law on Acceptance, 181-187.
87 J. Waldron, Who Needs Rules of Recognition?, 339.
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297
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POSTEMA, G., Coordination and Convention at the Foundations of Law, Journal of Legal Studies, vol. 11, No. 1,
1982.
RAZ, J., The Concept of a Legal System, Clarendon Press,
Oxford, 1970, 19802.
The Identity of Legal Systems (1971), in The Authority of Law, Oxford U.P., Oxford, 1979, 2009.
, Practical Reason and Norms, Oxford U. P., Oxford,
1975, 1990.
, The Functions of Law (1973), in The Authority of
Law, Oxford U. P., Oxford, 1979, 2009.
, Legal Positivism and the Sources of Law in The Authority of Law, Oxford U. P., Oxford, 1979, 2009.
, The Purity of the Pure Theory (1981), in The Authority of Law, Oxford U. P., Oxford, 1979, 2009.
, Authority, Law, and Morality (1985), in Ethics in the
Public Domain. Essays in the Morality of Law and Politics,
Oxford U. P., Oxford, 1994.
, On the Authority and Interpretation of Constitutions: Some Preliminaries (1998), in Between Authority and Interpretation, Oxford U. P., Oxford, 2009.
ROSS, A., On Law and Justice, London, Stevens, 1958.
, Validity and the Conflict between Legal Positivism
and Natural Law (1961), in Normativity and Norms:
Critical Perspectives on Kelsenian Themes, edited by S.
PAULSON, B. Litschewski Paulson, OUP, 1999.
SCARPELLI, U., Cos il positivismo giuridico, edizioni di Comunit, Milano, 1965.
SCHIAVELLO, A., Perch obbedire al diritto? La svolta convenzionalista e i suoi limiti, ETS, Pisa, 2010.
SHAPIRO, S., On Harts Way Out, Legal Theory, 4, 1998.
, Law, Plans, and Practical Reason, Legal Theory, 8,
2002.
298
299
PROBLEMA
Anuario de Filosofa
y Teora del Derecho
Resumen:
En este ensayo se plantea la idea de que en cierto modo la filosofa del
derecho al menos en la forma en que es entendida entre los filsofos
analticos del mundo angloparlante es en gran medida una invencin
de H. L. A. Hart. Con la obra de Hart, en efecto, la bsqueda del concepto o naturaleza del derecho, se ha consolidado como un objeto de investigacin independiente, que conscientemente pretende deslindarse de las
cuestiones polticas o morales. Al definir el campo de estudio de la filosofa del derecho en este sentido, Hart no slo se aparta del trabajo de Thomas Hobbes y de Jeremy Bentham, cuyos compromisos polticos son evidentes, sino tambin del proyecto aparentemente ms cercano de John
Austin. Despus de sealar la diferencia entre los proyectos de Austin y
de Hart, el autor pone en cuestin la direccin que ha tomado la filosofa
del derecho al ser encabezada por Hart.
Palabras clave:
Jurisprudencia analtica, filosofa del derecho, positivismo jurdico, naturaleza del derecho, H. L. A. Hart.
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Abstract:
In this essay I argue that in some sense legal philosophy, at least as the
term is now understood among analytic jurisprudents in the Anglophone
world, is to a large extent a creation of H. L. A. Harts work. It is with him
that the search for the concept or the nature of law was one established as
an independent object of inquiry, that consciously tried to avoid moral or
political questions. In framing the province of jurisprudence in this way
Hart not only departed from the work of Thomas Hobbes and Jeremy
Bentham, whose political commitments are clear, but also from the seemingly much closer enterprise of John Austin. After demonstrating this difference between Austins enterprise and Harts, I criticize the direction legal
philosophy has taken following Harts lead.
Keywords:
Analytical Jurisprudence, Legal Philosophy, Legal Positivism,
Nature of Law, H. L. A. Hart.
302
I. INTRODUCTION
In the course of a rather heated exchange in the pages of
the Times Literary Supplement Leslie Green and Brian Leiter
wrote: no one holds the view Professor [Brian] Simpson ascribes to us, namely that legal philosophy as a serious subject was invented by Hart.1 Well, this is, more-or-less, the
thesis I am going to defend here. This is not because I have
not heard of Aristotle, Bentham, Cicero, Duguit, Ehrlich,
Frank, Grotius, Hobbes, or Ihering. I have, in fact, written
about the fact that much of the plight of contemporary jurisprudence is the result of how little attention is paid to
the work of historical figures, who were often more original
and interesting than the thinkers whose works legal philosophers have analyzed to dust. My point, rather, is that with
Hart the English-speaking world has seen the creation of a
new way of thinking about jurisprudence, and that in doing
so he, in some sense, created a new subject. But whereas
Green and Leiter think of pre-Hart jurisprudence as a
dilettantish pastime for law teachers and retired judges, an
undisciplined jumble of history, speculative sociology, legal
doctrine and party politics, [that] became [with Hart] a
technical and rigorous branch of philosophy,2 I see Harts
contribution to jurisprudence in much more negative
terms.
1 Green, Leslie J. & Brian, Leiter, Letter to the Editor, H. L. A. Hart, Times Literary Supplement, April 15, 2005, p. 15.
2 Green, Leslie J. & Brian, Leiter, Letter to the Editor, H. L. A. Hart and The
Concept of Law, Times Literary Supplement, March 11, 2005, p. 15. By the way, it
should not be forgotten that philosophy in general from the first half of the twentieth century often appears quite amateurish by todays standards. Look at old volumes of the leading philosophical journals from those years and much of what appears there seems insufficiently rigorous by todays standards.
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This essay is part of a larger attempt to assess Harts impact on jurisprudence, and in particular that of his book
The Concept of Law,3 a book whose continued influence I
find less of a cause for celebration than others. My view,
one I will not defend here, is that Harts substantive theory
of law as articulated in The Concept of Law is largely a failure. In part it is because of the major issues Hart left out of
the book, which I think are crucial for any successful theory of law; in part this is because on many important issues Hart does address, his views are not very clear; and in
part it is because whenever he is clear, his explanations are
almost invariably less than successful. The Concept of Law
has the further demerit of seriously simplifying and misrepresenting the views of opposing views, which renders Harts
critiques of those views not very illuminating. Though many
of the misrepresentations in Harts account of the work of
legal realists, natural lawyers, and even earlier legal positivists have by now been pointed out, there is no doubt that
many have taken their first (and often last) impression of
these schools of thought from Hart, something that did not
bode well for the subject. True, The Concept of Law was
meant as a student textbook, and this inevitably required
some simplification at the expense of clarity of exposition.
But what one finds in Harts book are serious distortions of
fundamental ideas of other legal theorists, some of which
are still with us.
What then is Harts major contribution? I think Harts
most lasting influence on the field is the one that is probably least often noticed, and that is the setting of the boundaries of what actually belongs in the subject. The domain of
jurisprudence today is largely understood in the terms that
were defined by Hart. Harts legacy is best defined by what
jurisprudence is and, importantly, is not taken to be
3 Hart, H. L. A., The Concept of Law, 2nd ed., Oxford, Clarendon Press, 1994.
Further references to the book are made to Concept, parenthetically in the text. Citations throughout are to the (slightly differently paginated but otherwise identical) second edition.
304
about. But Hart did not begin with a clean slate: as is clear
to any reader of The Concept of Law, despite Harts criticisms of Austin, Harts own theory is built on Austinian
foundations. The purpose of this essay is to describe how
Hart determined the province of jurisprudence by subtly
but fundamentally shifting the ideas he took from Austin.
II. AUSTINS NOVELTY
Mr. Austin once said of himself, that if he had any special intellectual vocation, it was that of untying knots. So
said Mill of his former teacher. And as Mill added, this description fit Austin very correctly.4 Indeed. With seemingly
unbounded amounts of pedantry he sought to tell us what
positive law is. This required clarity of mind and well-kept
conceptual books, and at times it looks as though Austin
cared for little else. Ad nauseum one reads him telling us
what law (and other things) mean when they are properly
so called, strictly so called, or when they are used in the
proper acceptation of the term. When it came to law, this
required untying the knot that tied it to morality. This untying was not because there was no, substantively, necessary connection between the two. Austin never utters the
expression no necessary connection between law and morality, and his famous slogan the existence of law is one
thing, its merit or demerit is another,5 does not come remotely close to confirming it. What he does say, in fact, is
that [t]he proper purpose or end of a sovereign political
government or the purpose or end for which it ought to exist is the greatest possible advancement of human happiness (Province, p. 242), and this claim, if true, arguably
establishes some kind of connection between law and mo4 Mill, John Stuart, Austin on Jurisprudence, The Collected Works of John
Stuart Mill, Vol. 21, Toronto, University of Toronto Press, 1984, 167-205, p. 168
(first published 1863).
5 Austin, John, The Province of Jurisprudence Determined, Wilfrid E. Rumble
ed., Cambridge, Cambridge University Press, 1995, p. 157 (first published 1832).
Further references to this book will be made to Province parenthetically in the text.
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rality. On the other hand unlike contemporary legal philosophers Austin did not try to identify those features that all
legal systems necessarily have in common. He explicitly
limits his claims to the ampler and maturer legal systems,
whatever the proper acceptation of that term may be.6
It is true that he says that [w]ith the goodness and badness of laws [jurisprudence] has no immediate concern,
(Study, p. 350) but that is a methodological device needed,
he thought, for the clarity of explanation. As he put it:
Of laws or Rules there are various classes. Now these classes
ought to be carefully distinguished. For the confusion of them
under a common name, and the consequent tendency to confound Law and Morals, is one most prolific source of jargon,
darkness, and perplexity. By a careful analysis of leading
terms, law is detached from morals, and the attention of the
student of jurisprudence is confined to the distinctions and
divisions which relate to law exclusively. (Study, p. 355,
emphasis added.)
Or in a different formulation:
The matter of jurisprudence is positive law . But positive
law is often confounded with objects to which it is related
by resemblance, and with object to which it is related in the
way of analogy: with objects which are also signified, properly and improperly, by the large and vague expression law.
To obviate the difficulties springing from that confusion, I
begin with determining the province of jurisprudence, or
with distinguish the matter of jurisprudence from those various related objects trying to define the subject of which I
intend to treat, before I endeavor to analyse its numerous
and complicated parts (Province, p. 18).
To understand how Austin sought to keep law and morality separate in this sense, we need to see his position in the
line of thinkers that begins with Hobbes and ends with
6 Austin, John, On the Study of Jurisprudence, Lectures on Jurisprudence,
London, Murray, Vol. 3, 1863, 349-75, p. 349. Further references to this essay will
be made to Study parenthetically in the text. See also Austin, Province, p. 165.
306
7 Hobbes, Thomas, Leviathan, Richard Tuck ed., Cambridge, Cambridge University Press, 1996, pp. 120-21 (ch. 17) (first published 1651).
8 Bentham, Jeremy, A Fragment on Government, J. H. Burns & H. L. A. Hart
(eds.), Oxford, Oxford University Press, 1988, pp. 101-102 (IV.35) (first published
1776).
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9 See Postema, Gerald J., Bentham and the Common Law Tradition, Oxford,
Clarendon Press, 1986, pp. 232-37, 255, 260-62. Postema does not distinguish between normativity and legitimacy in the way I do in the text, but it is clear from his
discussion that Bentham was concerned with both. For the distinction between
the two and its significance to jurisprudence see Priel, Dan, The Place of Legitimacy in Legal Theory, McGill Law Journal, Vol. 57, 2011, 1-35.
10 See Bentham, Jeremy, An Introduction to the Principles of Morals and Legislation, Oxford, Clarendon Press, 1996, p. 263 note 4 (first published 1780) for the
complete discussion.
308
11 For a comparison between Austins and Kelsens theories see Kelsen, Hans,
The Pure Theory of Law and Analytical Jurisprudence, Harvard Law Review, Vol.
55, 1941, 44-70, pp. 54-66. Some of the criticisms Kelsen directs at Austins work
anticipate similar points found in Hart, The Concept of Law, supra note 3.
Admittedly, Kelsens theory is purer than Austins and there is no doubt that
Kelsen (to some extent via his influence on Hart and Raz) is relevant for a full picture of the state of contemporary analytic jurisprudence today. That, however, is a
question for another day.
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Austin defines positive laws laws that flow from human sources (Province, p. 110) as a species of commands. A command is then defined as an intimat[ion of] a
wish that [one] shall do or forbear from some act and that
intimation comes with an evil in case [one] compl[ies] not
with [the] wish (Province, p. 21). The direct link between
obligation and (threat of) sanction is clear when Austin discusses the question whether obligation exists whether the
magnitude of the eventual evil matters for the question of
obligation. Austin replies in the negative: The sanction, if
you will, is feeble or insufficient; but still there is a sanction, and, therefore, a duty and a command (Province, p.
23, emphasis in original).12 There is sanction and therefore
there is obligation.
In Austins account there is no puzzle in understanding
in what way law creates obligations, because the very definition of law seeks to remove all mystery from the matter.
Thus, while Austin famously denied that an unjust law is
not law,13 his account implied that for him a non-threatening law is not law.
This is a crucial point in Austins account: what counts
as law is identified by appealing to an account of legal obligation. One thing this point helps us see and better understand is a feature of Austins ideas that has come under
considerable attack, namely the link between obligation
and sanction. What we now see, however, is that this criticism is based on a misunderstanding of the way Austin understands the relationship between validity (law) and
normativity (coercion). As we shall see in a moment, Hart
12 See also Province, p. 118: Every duty properly so called supposes a command by which it is created. For every sanction properly so called is an eventual
evil annexed to a command. And duty properly so called is obnoxiousness to evils of
the kind.
13 Suppose an act innocuous, or positively beneficial, be prohibited by the sovereign under the penalty of death; if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the law of God, who
has commanded that human lawgivers shall not prohibit acts which have no evil
consequences, the Court of Justice will demonstrate the inconclusiveness of my
reasoning by hanging me up (Province, p. 158).
310
understands the relationship between the two in a very different way (he does not identify laws through an account of
normativity), which is why he concluded that their
connection was contingent.
III. HARTS INVERSION
The conventional wisdom is that Hart demolished Austins most important ideas. And up to a point, this is true.
But what must not be forgotten when reading Harts criticism of Austin is the he chose Austin as the subject of his
criticism because he thought there were elements in them
he could use to develop his own ideas. For this reason what
is interesting is not so much Harts critique of Austin, but
the extent to which Hart followed Austin (cf. Hart, p. vii),
the extent to which he adopted Austins general approach
his demarcation of jurisprudence without really arguing
for it. After all, Austins was not the only way of thinking
about jurisprudence, and though he was popular and appeared in many of the books Hart hated so much, the
books form which one learns what other books contain
(Concept, p. vii), he was not the only one featured in these
books and was far from being universally admired.14
Building on Austin, then, was not forced upon Hart. The
reason Hart chose to do that was because, consciously or
not, he felt a certain affinity with Austins work: part of it
must have been their shared concern for intellectual tidiness and clear-headedness,15 and another with the absence
14 In fact, many of the criticisms of Austin now associated with Hart were made
by others many years earlier. See generally Rumble, Wilfrid E., Doing Austin Justice:
The Reception of John Austins Philosophy of Law in Nineteenth-Century England,
London, Continuum, 2005, pp. 225-41: One of the most remarkable features of the
nineteenth-century reception of Austins work is the significant extent to which is
foreshadows H. L. A. Harts highly influential criticisms of Austin (quote at 225).
15 See Hart, H. L. A., Positivism and the Separation of Law and Morals, Harvard Law Review, vol. 71, 1958, 593-629, pp. 593-94; see also Hart, H. L. A., A
View of America, Listener, Vol. 59, 1958, 89-90, p. 90; cf. White, Alan R., Austin
as a Philosophical Analyst Archiv fr Rechts- und Sozialphilosophie, Vol. 64, 1978,
379-399, for the suggestion that Austin could be considered an early proponent of
analytic (here: ordinary language) philosophy.
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312
question when people put believe they have one.17 This account fits Harts claim to be engaged in descriptive sociology (Concept, p. vi), but it comes at a high cost: this is descriptive sociology of the useless kind. It is not based on
anything that would be remotely acceptable as evidence for
a social scientific explanation: no interviews, questionnaires, collection of data or anything that could justify the
claims Hart is making, if understood in these terms.
Therefore, the alternative reading, viz. that Harts practice theory of rules is an account of normativity, looks more
fruitful, or at least more charitable. However, at first it
seems equally unpromising. If taken as a philosophical
elucidation of legal obligation it seems to say, more or
less, that people are under a social obligation when they
believe they are under social obligation. And the problem
with this view is that, as Stephen Perry once put it bluntly,
believing does not make it so.18
In fact, however, we can discern a more elaborate account in The Concept of Law. For Hart, at a minimum, A is
under a legal obligation if
(1) there are relevant others who treat certain sources as a
source of prescriptions;
(2) the relevant others have power and they use it to ensure that the prescriptions contained in the sources are generally obeyed (Concept, pp. 103-04);19 and
17 Moore, Michael S., Educating Oneself in Public: Critical Essays in Jurisprudence, Oxford, Oxford University Press, 2000, p. 85: Hart is giving us a sociology of ethics. He is analysing when people regard themselves as bound by prescriptive rules, and more particular, when people regard themselves as bound by the
social rules of obligations.
18 Perry, Stephen R., Interpretation and Methodology in Legal Theory, in
Andrei Marmor (ed.), Law and Interpretation: Essays in Legal Philosophy, Oxford,
Clarendon Press, 1995, 97-135, p. 122.
19 Why the strong demand for power that is used? Because the most minimal
case of a legal system according to Hart is one in which the As only obey the law because it creates threats. Hart claims that as a conceptual truth these are cases of a
legal system. As he puts it those rules of behaviour which are valid according to
the systems ultimate criteria of validity must be generally obeyed. [This] condition is the only one private citizens need satisfy: they may obey each for his part
only and from any motive whatever (Concept, p. 116). For the difficulties this
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raises to Harts view see Priel, Danny, Sanction and Obligation in Harts Theory of
Law, Ratio Juris, Vol. 21, 2008, 404-11.
314
On this view if you are looking for more, you are committing a category mistake. Gilbert Ryle, who coined this
term used the example of the visitor to Oxford who, after
seeing the colleges, academic departments, libraries, administrative offices and so on still asks, But where is the
university? The answer, says, Ryle, is that once you have
seen all that the visitor saw the University has been
seen.20 In effect, Hart charges the critic who looks for more
than this, to be making exactly the same mistake. Once you
have understood Harts account of law as a union of primary and secondary rules, the normativity of law has been
seen.21
Why, you may wonder, does all this matter? So Austin
started with normativity and Hart with validity, what difference does it make? The difference may seem subtle but I
think it is important for understanding the path of analytic
jurisprudence in the last fifty years. Hart aimed to show
that good analytic jurisprudence is sociology, because once
he has elucidated the meaning of the relevant terms, there
was no more real sociological work to be done. The gathering of empirical data will not add anything of value to
what good analytic philosophy can do.22 I do not know of
any contemporary legal philosopher who accepts these
views; but even though the particular account may not
have contemporary defenders, this view has been instrumental in establishing the view that legal philosophy is a
different, closed, even isolated domain. By answering the
puzzle of the normativity of law internally, i.e. by concepSee Ryle, Gilbert, The Concept of Mind, London, Hutchinson, 1949, p. 16.
Contra Shapiro, Scott J., Legality, Cambridge, Harvard University Press,
2011, p. 103. Shapiro accuses Hart of committing a category mistake by offering a
reductive account of laws normativity. This claim is doubly odd: first, it is exactly
the point of reductive accounts to explain one phenomenon in terms of another: if
that were a category mistake, then no reductive explanation would be possible;
second, as explained in the text Hart offers an explanation that, whatever its merits happen to be, clearly avoids the charge of category mistake.
22 Of sociology as done by sociologists Hart admitted he had always been mistrustful. Hart Interviewed: H. L. A. Hart in Conversation with David Sugarman,
Journal of Law and Society, Vol. 32, 2005, 267-93, 289.
20
21
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23 See Raz, Joseph, The Authority of Law: Essays on Law and Morality, 2nd ed.
Oxford, Oxford University Press, 2009, pp. 44, 104-05; Shapiro, supra note 21, pp.
406-07 note 16.
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319
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29
323
PROBLEMA
Anuario de Filosofa
y Teora del Derecho
Resumen:
Los crticos del positivismo jurdico hartiano han caracterizado este enfoque como una teora del error sobre el discurso judicial concretamente
sobre la argumentacin judicial en el contexto de desacuerdos relacionados con una metodologa de interpretacin apropiada. Los crticos tambin han sugerido que el positivismo hartiano, al igual que otras teoras
del error en otros campos de la filosofa, ha de ser tomada por falsa. El
propsito de este artculo es ofrecer una explicacin ms cuidadosa de la
naturaleza y alcance del error que los positivistas hartianos atribuyen a
los jueces. Se argumentar que el positivismo hartiano, aun cuando pudiera ser entendida como una forma de teora del error, no debera ser
relacionada con, por ejemplo, teoras del error en metatica, donde el
error relevante es omnicomprensivo y misteriosamente permanente.
Palabras clave:
Positivismo jurdico, teora del error, desacuerdo de interpretacin, metatica, H. L. A. Hart.
325
Abstract:
Critics of Hartian legal positivism have characterized it as an error theory
about judicial discourse more precisely, about judicial argument in contexts of disagreement about proper interpretive methodology. The critics
have also suggested that Hartian positivism, like error theories in other areas of philosophy, is to be presumed false. The purpose of this paper is to
give a precise account of the nature and extent of the error assigned to
judges by Hartian positivists. It will be argued that Hartian positivism, even
if it can be understood as a form of error theory, should not be likened to,
say, error theories in metaethics, where the relevant error is pervasive and
mysteriously enduring.
Keywords:
Legal Positivism, Error Theory, Interpretive Disagreement,
Metaethics, H. L. A. Hart.
326
I. INTRODUCTION
A number of legal philosophers (henceforth the critics) recently offered an objection to Hartian positivism (henceforth
HP) that deserves careful consideration.1 What follows is a
reconstruction of the argument grounding the critics objection:
(P1) Error theories are to be presumed false;
(P2) HP is an error theory;
(C) Therefore, HP is to be presumed false.
(P1) asserts what appears to be a well-established view in
other areas of philosophy, if not yet in jurisprudence: a theory about an entrenched type of discourse or mode argument that characterizes it as systematically flawed (e.g. as
resting on a false set of assumptions) is to be presumed
false. The presumption, of course, can be defeated; but the
burden of argument is assigned to the proponents of the error theory. I will not question the truth of (P1) in this paper;
(P2) will be the main target of my criticisms.
Why would HP be regarded as an error theory? An answer to this question requires a bit of background. HP is often associated with the claim that the content of the law
depends on official consensus. This claim is ambiguous because the phrase content of the law is ambiguous. H. L.
A. Hart clearly believed that the rule of recognition has its
content fixed by official consensus. And the rule of recogni1 These are some of the critics I have in mind: M. Berman, Constitutional
Theory and the Rule of Recognition: Toward a Fourth Theory of Law, in M. Adler
and K. Himma (ed.), The Rule of Recognition and the U.S. Constitution (New York: Oxford University Press, 2009); S. Sciaraffa, The Justificatory View and Theoretical
Disagreement (forthcoming in Problema. Anuario de Filosofia y Teoria del
Derecho); and S. Shapiro, What Is the Rule of Recognition (And Does It Exist)?,
in M. Adler and K. Himma (ed.), The Rule of Recognition and the U.S. Constitution
(New York: Oxford University Press, 2009).
327
328
331
332
334
ing of a rule is not vague, ambiguous or otherwise indeterminate, judges will only deviate from it if they can provide
strong arguments based on the supposed intentions of the
authors of the rule or on pressing considerations of policy
and principle that more often than not are presented as describing the underlying rationale of the very rule. The interpretive rule guiding this practice might be formulated thus:
Plain meaning (when it is clear) is to be applied unless the results of so doing are very unsatisfactory (from a substantive
point of view) or unless legislative intention is clearly at odds
with plain meaning. This rule clearly has a penumbra of uncertainty (how unsatisfactory must the results be in order
to qualify as very unsatisfactory?) but it also has a core of
clear meaning and thus is capable of disposing of a large
array of cases.8
I will now turn to a particular case, the famous Riggs v
Palmer, in order to provide more focused evidence for the
claim that judicial interpretive practice is rule-governed in
legal systems like that of the US. Riggs will also be the
source of an important lesson about how to identify genuine instances of disagreement about interpretive methodology. In Riggs, the Court of Appeals of New York did not allow the defendant, Palmer, to inherit under the will of his
grandfather, whom he had murdered. The court made this
decision in spite of the fact that the plain meaning of the
relevant statutes did not invalidate the grandfathers will.
Plain statutory meaning, in this case, was arguably displaced by the substantive principle that no man may profit
from his own wrong. There are two interesting facts about
Riggs. One is simply that plain meaning was discarded, a
fact which may motivate suspicion about my claim that
judges share a strong presumption in favor of plain meaning. The second fact is that there was a dissent in which
8 Note that the vagueness of this formulation of the rule is partly a function of
the fact that it purports to encompass the subtly different practices that occur in
all nine jurisdictions. The practices of each jurisdiction can be described somewhat more precisely.
335
336
10
11
337
umbra of uncertainty and it is likely that some of the putative examples of disagreement about interpretive methodology provided by the critics are in fact instances of disagreement that arise under the rules penumbra. Recall
Harts famous example of a rule that did not permit vehicles
in a public park. Disagreement might arise as to whether a
bicycle is an instance of a vehicle and hence whether it
should be permitted in the park. This kind of disagreement
does not concern the critics, for it is not disagreement
about proper interpretive methodology. All parties to the debate about bicycles may be convinced that the plain meaning of the rule should be enforced. The problem is that vehicle is a vague term and that bicycle is a borderline case.
Similarly, in Riggs, the judges were probably not really disagreeing (although their rhetoric may suggest otherwise)
about what interpretive method to apply. Instead, they disagreed about the application of a second-order interpretive
rule with fuzzy edges. The question was simply whether
Palmers behavior was rotten enough to allow for the defeat
of plain meaning.
339
PROBLEMA
Anuario de Filosofa
y Teora del Derecho
Resumen:
El concepto de derecho (1994) de H. L. A. Hart, contiene muchos pasajes
que se han convertido en conos de la teora jurdica. Este artculo se
concentra en el captulo 7, seccin 1 y 2, y en los comentarios que realizara Hart sobre la discrecin judicial en el contexto de la bien conocida
crtica de Dworkin a esta misma idea en su ensayo El modelo de las
normas. Especficamente, el artculo emprende tres proyectos. El primero de ellos consiste en defender la importancia del esquema fundamental
que ofrece Hart en el captulo 7 de su obra, esto es, la creacin judicial
de normas en el Common Law. Hart representa tal creacin de normas
como un balance de certeza y flexibilidad; y l est en lo correcto al presentarlo de tal modo. El segundo proyecto consiste en argumentar que la
crtica de Dworkin al modelo positivista de la creacin judicial de normas
en el Common Law, como un ejercicio de discrecin fuerte, no est sustentada. La idea central para el significado de discrecin fuerte de
que los tribunales no estn sujetos a criterios establecidos por la autoridad en cuestin no puede ser establecida. El tercer proyecto consiste en
argumentar que Hart es su peor enemigo. El lenguaje, las metforas e
imgenes que emplea para exponer su teora de la creacin judicial de
normas en el Common Law abre la puerta a la crtica dworkiniana. Si tomamos en serio el lenguaje, las metforas y las imgenes, encontraremos a un Hart del tipo formalista o deductivista sobre la adjudicacin,
justo como el que l mismo est abiertamente cuestionando en el captulo 7 de El concepto.
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ROGER A. SHINER
Palabras clave:
Discrecin judicial, Common Law, creacin judicial de normas, positivismo jurdico, escepticismo ante la regla, formalismo, textura abierta, autoridad, certeza, flexibilidad, H. L. A.
Hart, R. Dworkin.
Abstract:
H. L. A. Harts The Concept of Law (Hart 1994) contains many passages
that have become iconic for legal theory. This essay focuses on Chapter 7,
sections 1 and 2, and Harts comments about judicial discretion in the context of Ronald Dworkins well-known attack on the idea of judicial discretion in his essay The Model of Rules. Specifically, the paper undertakes
three projects. The first project is to defend the importance of the fundamental picture that Hart presents in Concept, Chapter 7 of Common-Law
judicial rule-making. Hart represents such rule-making as a balance of certainty and flexibility, and he is correct to do that. The second project is to
argue that Dworkins attack on the positivist model of common-law judicial
rule-making as an exercise of strong discretion fails. The idea, central to
the meaning of strong discretion that courts are not not bound by standards set by the authority in question cannot be established. The third is
to argue that Hart is his own worst enemy. The language, metaphors and
images he uses to present his account of common-law judicial rule-making
open the way to Dworkins critique. They also reveal Hart, if the language,
metaphors and images are taken seriously, to be precisely the kind of
formalist or deductivist about adjudication that he is ostensibly in Concept
Chapter 7 criticising.
Keywords:
Judicial Discretion, Common Law, Judicial Rule-Making, Legal
Positivism, Rule-Scepticism, Formalism, Open Texture, Authority, Certainty, Flexibility, H. L. A. Hart, R. Dworkin.
342
I. INTRODUCTION
H. L. A. Harts The Concept of Law (Hart 1994) contains
many passages that have become iconic for legal theory. In
this essay, I want to focus on Chapter 7, sections 1 and 2,
and Harts comments about judicial discretion. I also want
to revisit and review Ronald Dworkins well-known attack
on the idea of judicial discretion in his essay The Model of
Rules (Dworkin 1978, Chapter 2). Specifically, I have three
projects in this paper. The first is to defend the importance
of the fundamental picture that Hart presents in Concept,
Chapter 7 of common-law judicial rule-making. The second
is to argue that Dworkins attack on the positivist model of
common-law judicial rule-making as an exercise of strong
discretion fails. The third is to argue that Hart is his own
worst enemy. The language, metaphors and images he uses
to present his account of common-law judicial rule-making
open the way to Dworkins critique. They also reveal Hart, if
the language, metaphors and images are taken seriously, to
be precisely the kind of formalist or deductivist about adjudication that he is ostensibly in Concept Chapter 7
criticising.
Let me begin with a reminder of the passages in Concept I
have in mind. Famously, in the context of what Hart identifies as our twin handicaps of relative ignorance of fact
and relative indeterminacy of aim (128) and of the open texture of legal language, he speaks of the courts as
rule-making authorities who exercise a discretion (132),
of the law as being developed by the courts (135). He says
that at the margin of rules and in the fields left open by
the theory of precedents, the courts perform a rule-producing function (135) that is also referred to as a creative
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ROGER A. SHINER
the use of discretion is to say no more than that the decision requires the use of judgment, not of the mechanical
application of a standard: the second weak sense, according to which to say that a decision requires the use of discretion is to say no more than that the decision the decision-maker takes is not subject to review and possible
reversal by any other official: the third, or strong, sense,
according to which to say that a decision requires the use
of discretion is to say that the decision-maker is simply
not bound by standards set by the authority in question
(Model, 32), or that the decision-makers decision is not
controlled by a standard furnished by the particular authority we have in mind when we raise the question of discretion (Model, 33).
I lay aside here the second of the weak senses: it plays
no role in this essay. I am concerned about the interplay
between the first weak sense and the strong sense.2
Dworkins claim, as we know, is that when positivists talk
about discretion, they have to be using the term in the
third, strong sense, and that as a result their theory must
fall.
The Meaning of Weak and Strong
Dworkins imagery of weak and strong is notably different from Harts imagery. When he is not using the plain
terminology of regulated and unregulated disputes,
Harts imagery is essentially spatial. He uses expressions
like gaps in the law, interstitial powers, open texture,
areas of conduct, area of open texture and judicial activity within it, at the margins of rules and in the fields left
2 I am going to stop now using the inverted commas around weak and
strong, because it will become tedious. But I do want to emphasize that these
terms are Dworkins creation. It must not be supposed that he is drawing on some
previously established or accepted use of these terms in English that has the
meaning he attributes to it. Somewhat the same might be said of Harts use of discretion as a technical term, although his use of it is far closer to the ordinary use
of the word in English.
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ROGER A. SHINER
I can offer a plausible reconstruction. Fred Schauer writing a couple of decades or more after Dworkin points out
that rules function as devices for the allocation of power,
and that according to the forms of language in which rules
are expressed, rules may allocate more or less power
(Schauer 1991, 15862). Schauers thought is this. Imagine
one person or body of persons wanting to control the behavior of another person or body of persons. Suppose the
would-be controller expresses their wish for the would-be
controllee to comply in vague and general language: a parent might say to a child, Go out and have fun: Ill see you
later. The parent hands over virtually all control over the
future behavior of the child to the child: the parents rule
allocates almost all power to the child. On the other hand,
the parent might say something very specific: all right, go
and play with your friends: but dont go further than the
end of the road, dont talk to strangers, be back by 5.00
pm, and phone me every hour so that I know you are all
right. Here the parents rule allocates most of the power to
the parent. Likewise, in the case of a legislative body delegating power to an administrative body, the legislature
might pass a very precise body of rules and regulations and
charge the administrative body with the application of these
rules exactly as written. In such a case, most of the decision-making power rests still with the legislature. Or the
legislature might pass a body of rules that is full of terms
like fair, reasonable, due and so on, terms which leave
a lot of work to be done by the administrative body applying
them to determine exactly how they are to be applied in
particular cases. Here the legislature is essentially handing
over a lot of power to determine outcomes to the administrative body. This structure can be linked to weak and
strong discretion, especially if we consider Dworkins examples (Model, 32). If a lieutenant orders a sergeant to take
the five most experienced men on patrol, the discretion
given to the sergeant is weak in that most of the power to
determine who goes on patrol rests with the lieutenant. If
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ROGER A. SHINER
the lieutenant tells the sergeant to pick any five men for
patrol he chooses, the discretion given to the sergeant is
strong in that all of the power to determine who goes on
patrol rests with the sergeant.3
This interpretation of weak and strong might seem to
bring Dworkins schema into line with a different spatial
image used by Hart in speaking of judicial discretion
where he speaks of courts or judges discretion being
narrow or wide (cf. Concept, 135, 273). He is speaking
primarily of judicial law-making in the domain of common-law precedent, where the terminology of narrowing
or widening is well established. Actual cases involve actual fact-situations, and necessarily only some of the features of any given fact-situation will be material to the legal
issue involved. A court might decide that some given feature of the fact-situation of a case is no longer to be one
that is part of the set of features that create the legal rule
for which the case stands. In such an instance, the court is
said to narrow the rule extracted from the precedent case.
Or the court might decide to add into the set a feature that
was not previously considered part of the set: then the
court is said to widen the rule for which the precedent
stands. Such narrowing or widening will have an effect on
the power of future courts to control how the precedent affects the particular case that has fallen to them to decide.
So one might think that when a court narrows a precedent
that it automatically weakens the discretionary decision-making powers of future courts, and when it widens a
3 Incidentally, one of Dworkins examples is very odd. He imagines a dog show
judge who has discretion to judge airedales before boxers if the rules do not stipulate an order of events. But that isnt going to happen. In North America, anyway,
airedales would not be judged alongside boxers, as they belong to different groups.
Airedales are in the Terrier group, and boxers the Working group. Within groups,
breeds are judged alphabetically. Even if an airedale won the Terrier group and a
boxer the Working group, in the final Best of Show group again the order of judging
groups is specified. So Dworkin has picked an example which is guaranteed to be
counterfactual. Over things like this dog show judges have no discretion: the
American Kennel Club rules spell it all out. Of course, in judging this or that dog to
be the best boxer, say, certainly weak discretion would be involved.
348
precedent it strengthens such powers. But that is not necessarily so. The effect of narrowing a precedent might just
as easily be to leave more room for discretionary decision-making by future courts, and the effect of widening a
precedent to leave less room. It is not possible to decide
what is actually the case in the abstract. Everything will
turn on the specifics of the case in question and the area of
law in question.
Nonetheless, even if we can in this way reconstruct a
plausible meaning for the terminology of strong and weak
discretion, this does not further Dworkins critique of positivism. For one thing, the home for the terminology we have
found applies only in one narrow area of adjudication, a
specific established practice of courts in relation to reasoning from precedent. Dworkin clearly intends the object of
his critique to be some alleged feature of adjudication tout
court. Moreover, the terminology of narrow and wide applies to the structure of the verdict itself in a case, not to
the process of reasoning by which the verdict was reached.
There is no necessary connection between a verdict containing a widening of a precedent and the process of arriving at that verdict being one of the exercise of strong discretion, nor is there any connection between a verdict
containing a narrowing of a precedent and the process of
arriving at that verdict being one of the exercise of weak
discretion. The process in both instances is, if it is, a matter of strong or weak discretion for entirely different reasons from those for which the verdict would be called a
widening or a narrowing of precedent or precedents
before the court.
Not Bound by Standards Set by the Authority in Question
Whatever we can make of the terminology of weak and
strong in general, Dworkins use of the terms depends
crucially on the phrase I have highlighted as the title of this
subsection. It seems to me that this phrase stipulates what
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ROGER A. SHINER
350
ROGER A. SHINER
ROGER A. SHINER
354
355
ROGER A. SHINER
ROGER A. SHINER
358
engage in law-making by adjusting and amending, by expanding or contracting the law as unforeseen circumstances, or unnoticed indeterminacies, require. He could
even have summarized this power of the courts as a discretionary power, a power or right to decide or act according
to ones own judgment. The expression according to ones
own judgment, as Dworkin himself emphasizes more than
once, can be given a perfectly innocent interpretation in
terms of reliance on ones own judgment simply in order to
make any judgment at all, as opposed to relying on ones
own judgment just because it is ones own judgment (see,
for example, Dworkin 1978, 124).
If Hart had expounded his view in terms such as these, it
would have been very hard for Dworkin to get traction for
any claim that Hart or any other positivist is committed to
what Dworkin calls strong discretion, to saying that a
court exercising such a discretionary power is like a sergeant being told to pick any five men he likes to go patrol in
not being bound by any standards set by the authority in
question. Harts specific interest in Waismanns views and
Waismanns image of the open texture of language in that
sense has not served Hart or legal positivism well. This image and those associated with it (see the second paragraph
of this essay for a more detailed list) create the association
of discretionary decision-making with gaps and space, with
there being no law there where the decision-making takes
place, and thus pave the way for Dworkins attack. These
images have helped to obscure, rather than illuminate, the
aspects of legal reasoning and common law adjudication
that Hart quite rightly thought in the context of the conflict
between formalism and rule-scepticism that he needed to
emphasize.9
Moreover, to the extent that Hart thinks these images
must be taken seriously that there really are gaps in the
law, that courts really do reason in open fields, that they
9 For more on the role of spatial metaphors in the construction of the conflict
between positivism and anti-positivism, see Shiner 1992, 316-21.
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ROGER A. SHINER
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ROGER A. SHINER
362
PROBLEMA
Anuario de Filosofa
y Teora del Derecho
Resumen:
En este ensayo el autor defiende a H. L. A. Hart de dos crticas recurrentes a su teora de las normas sociales y a las obligaciones que regularmente acompaan a estas normas. Ambas crticas, sostiene el autor,
descansan sobre malos entendidos o caracterizaciones equivocadas de lo
que Hart en realidad se propuso. Estos malentendidos son explicados
plausiblemente a travs de la falta de capacidad de los crticos de apreciar plenamente dos de las valiosas lecciones que Hart deseaba expresar
en su lectura inaugural. En primer lugar, palabras como norma y obligacin no deberan ser sacadas de sus distintos contextos de uso para
someterlas a definiciones abstractas y al anlisis filosfico. En segundo
lugar, cuando se analizan enunciados en los cuales figuran tales palabras, tanto en la teora como en la prctica del derecho, resulta primordial tener en mente las diversas funciones que esos enunciados puedan
tener y los diferentes propsitos para los cules esos enunciados fueron
proferidos.
Palabras clave:
Normas sociales, obligacin, jurisprudencia analtica, filosofa
del lenguaje, H. L. A. Hart.
Abstract:
In this paper, I defend H. L. A. Hart against two prevalent criticisms of his
views on social rules and the obligations with which these rules are often
associated. These criticisms, I argue, rely on misunderstandings or
363
W. J. WALUCHOW
mischaracterizations of what Hart actually intended. These misunderstandings are plausibly explained by a failure on the part of his critics to appreciate fully two of the valuable lessons Hart sought to communicate in his inaugural lecture. First, words like rule and obligation should not be
removed from their various contexts of use and subjected to abstract philosophical definition and analysis. Second, when analyzing assertions in
which such words figure in both legal practice and theory, it is crucial to
bear in mind the different functions these assertions can be made to serve
and the different purposes to which they can be put.
Keywords:
Social Rules, Obligation, Analytical Jurisprudence, Philosophy
of Language, H. L. A. Hart.
364
I. THOUGHTS ON METHODOLOGY
Upon assuming the Oxford Chair of Jurisprudence, H. L. A.
Hart presented his inaugural lecture in which he warned of
certain methodological traps into which legal philosophers
sometimes fall. In issuing these cautions, Hart saw himself
as following in the footsteps of his positivist predecessor,
Jeremy Bentham, a philosopher Hart much admired, and
from whom he thought we had much to learn. It is vital,
Hart wrote, that we
attend to Benthams warning that we should not, as does
the traditional method of definition, abstract words like
right and duty, State, or corporation from the sentences
in which alone their full function can be seen, and then demand of them so abstracted their genus and differentia.1
365
W. J. WALUCHOW
366
W. J. WALUCHOW
ways view themselves as simply obliged to obey its directives upon pain of penalty. They often view themselves as
under its obligations and as possessing the rights and powers that law, via its secondary rules, creates and facilitates.
With respect to those laws that impose obligations on them,
they view themselves as bound by the relevant norms, not
by any sanctions that might or might not be inflicted
should they fail to comply. In order to capture and explain
this normative dimension of law, its internal aspect, we
need, Hart claimed, to replace the notion of a command
with that of a rule.
Yet if law is fundamentally a matter of rules, then a question naturally arises for Hart, as it does for any theorist
who views law this way: Where do legal rules come from?
Harts answer was that many legal rules are brought into
existence through the use of formal procedures like legislative enactment, a procedure made possible by a systems
secondary, power-conferring rules. But this raises a further
question: Where do these secondary rules come from and
from where do they get their normative force? According to
Kelsen, we must presume a basic norm that authorizes
the entire process, that gets it off the ground, so to speak.
Wanting to anchor legality in social reality, Hart proposed
instead that the relevant basic rules are neither presumed
nor deliberately created via specified formal acts or procedures. Rather, they arise informally by way of the behaviour and attitudes the practices of those who willingly
observe them and whose rules they are. Harts famous rule
of recognition is, of course, the foremost example of these
special rules in virtue of which the normative, i.e. rule-governed practice of law comes into being. It is not postulated
or presumed as in Kelsens work. Nor is it formally enacted
as in the case of the Canadian Criminal Code or the Canadian Charter of Rights. On the contrary, it exists within and
as a result of the actual social practices of those whose rule
it is. It is, in short, a social rule. Such a rule exists when
there is a pattern of behaviour accompanied by the appro368
Hart, The Concept of Law, 2nd ed. (Oxford: Clarendon Press, 1994), 57.
Scott Shapiro, Legality (Cambridge: Harvard University Press, 2011), 103.
369
W. J. WALUCHOW
strongly suggests that rules are standards that guide conduct, not the conduct itself.7
Shapiros charge that Hart has made a category mistake
echoes criticism leveled years earlier by Ronald Dworkin in
The Model of Rules II. Here, Dworkin also claims that
Harts social rule theory mistakenly takes a social rule to be
nothing but a social practice and views the assertion or expression of such a rule as nothing over and above a factual
statement to the effect that the practice-conditions for the
existence of the rule are satisfied. The existence of a social
rule, and therefore the existence of the duty, is simply a
matter of fact.8 Dworkin goes on to argue that people who
invoke social rules in evaluating behaviour do not view
them this way. This is certainly true of a person who finds
the social practice pointless, or silly, or insulting.9 Such a
person may believe that it does not even in principle justify
asserting any duties or normative rules of conduct, and in
that case he will say, not that it imposes a duty upon him
which he rejects, but that, in spite of what others think, it
imposes no duty at all.10 It is true, Dworkin adds, that people who invoke rules often do assume a social practice such
as Hart describes as an essential part of their justification
for doing what they do. This might be, for example, because
they do not wish to disturb settled expectations and cause
the harm that might result from the frustration of those expectations. In such cases, the social practice helps to justify a rule which [a] normative judgment states.11 But
Harts theory doesnt put things this way: it erroneously assumes that the rule just is the practice. In other words,
Hart has committed the category mistake that Shapiro,
years later, accused him of making. The existence of a soIbid.
Ronald Dworkin, Taking Rights Seriously (Cambridge: Harvard University
Press, 1978), 49-50.
9 Ibid., 58.
10 Ibid.
11 Ibid., 57.
7
8
370
cial practice is an empirical matter of fact that can help justify the assertion of a normatively binding rule of behaviour
and the normative judgments it supports. But such a practice can never itself be or constitute a normative rule.
III. RULES OF OBLIGATION
Included within a societys social rules will be some that
are thought to impose duties and obligations.12 These are
the rules which the societys members generally view as vitally important to social life or some crucial part of it, and
which they are willing as a result, and if necessary, to back
up with serious social pressure. These rules are also characteristically recognized as requiring conduct that, while
benefitting others, may come in conflict with self-interest.
Hence obligations and duties are thought of as characteristically involving sacrifice or renunciation.13 Rules prohibiting gratuitous infliction of harm and the keeping of promises typically count among a societys obligation rules; rules
governing fashion and polite discourse usually do not.
Harts theory of obligation has, like his theory of social
rules, been subject to extensive critique over the years.14
Dworkin, for example, correctly pointed out that Hart was
wrong to think that one cannot sensibly assert an obligation unless there is a social rule that supports its existence.
Vegetarians, for example, can meaningfully claim that everyone has a moral obligation not to eat meat, despite the
fact that doing so is an entrenched practice within virtually
all societies. In the Postscript, Hart acknowledges the force
of Dworkins criticism, as well as the validity of Dworkins
12 In most of his discussions of obligation and duty, Hart refers to the two interchangeably. I will follow Harts lead here.
13 The Concept of Law, 87.
14 See, e.g., Richard Bernstein, Professor Hart on Rules of Obligation Mind,
New Series, Vol. 73, No. 292 pp. 563-566; Roscoe E. Hill, Legal Validity and Legal
Obligation The Yale Law Journal, Vol. 80, No. 1 (1970), pp. 47-75; Michael Green,
Legal Realism as Theory of Law, William and Mary Law Review, Vol. 46, No. 6
(2005), pp. 1915-2000.
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W. J. WALUCHOW
claim that he, Hart, had failed carefully enough to distinguish between the concurrent acceptance of a rule and the
acceptance of a conventional rule. A community displays a
concurrent [acceptance] when its members are agreed in
asserting the same, or much the same, normative rule, but
they do not count the fact of that agreement as an essential
part of their grounds for asserting that rule. It displays [acceptance of a conventional rule] when they do so.15 To this,
Hart responds:
My account of social rules is, as Dworkin has also rightly
claimed, applicable only to rules which are conventional
But the theory remains as a faithful account of conventional
social rules which include, besides ordinary social customs
(which may or may not be recognized as having legal force),
certain important legal rules including the rule of recognition, which is in effect a form of judicial customary rule existing only if it is accepted and practiced in the law-identifying and law-applying operations of the court.16
372
making these points, Himma goes on to develop his own sophisticated and subtle theory of legal obligation that, as his
title suggests, brings Austin and Hart together in ways few
would have imagined.
Hart explains the binding character of social obligations in
terms of considerations ordinary persons are likely to regard
as having normative significance.Social pressure in the
form of a hostile reaction is something people with ordinary
psychological characteristics tend to regard as having normative force[I]t is an empirical fact that ordinary persons
tend to dislike criticism and hostility and are willing to take
at least minimal steps to avoid it[I]t is clear that Hart views
social pressure as being a necessary constituent of social
obligation. As Hart puts the view, such pressure is the primary characteristic of obligation.18
373
W. J. WALUCHOW
374
375
W. J. WALUCHOW
for acting as she does? Would she, in justifying her behaviour by citing the rule that licenses or requires it, mean to
assert nothing over and above what the historian asserts?
Certainly not. As made plain in the Postscript, if the rule is
a conventionally based social rule, then part of the reason
behind her assertion will be the social facts Hart draws to
our attention and to which the sociologist or historian will
appeal in justifying his claim that the social rule exists. But
it will almost certainly be only part of the reason. Another
part might well consist in the various values, perhaps
moral, perhaps not, realized in practicing the particular social rule in question.23 More importantly, whatever that additional element is, the fact remains that the claim being
made by our rule supporter is not the same as the claim
made by our legal historian; it is not, as Hart put it in his
response to Dworkin, a statement of the external sociological fact that the practice-conditions for the existence of the
rule are satisfied.24
So what kind of statement is it? The simple answer is
that its a normative statement, signalling the speakers acceptance of the requirement that she behave as the social
rule prescribes. One who wishes to dispute this particular
statement will not necessarily (though she might) point to
the absence of the practice-conditions historians could
quibble over. She is more likely, however, to appeal to the
absence of sound or valid reasons for doing as the social
rule prescribes. She might, to use Dworkins very own
words, claim that the rule is pointless, or silly, or insulting25 in which case her view will not be that there is a duty
which she rejects but that there is no duty at all. And this
23 Hart claims that individuals can have any number of reasons for accepting
and abiding by a social rule. See The Concept of Law, p. 257. This any reasons thesis has been disputed by a number of theorists in regard to legal obligations. See,
e.g., Raz, Hart on Moral Rights and Legal Duties, Oxford Journal of Legal Studies,
Vol. 4, No. 1, pp. 123-31, and Shapiro, Legality, p. 114.
24 The Concept of Law, 256.
25 Taking Rights Seriously, 58.
376
377
W. J. WALUCHOW
27
Himma, 17.
379
W. J. WALUCHOW
1. Rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent
and the social pressure brought to bear upon those who deviate or threaten to deviate is great.28
and finally
3. [I]t is generally recognized that the conduct required by
these rules may, while benefitting others, conflict with what
the person who owes the duty may wish to do. Hence obligations and duties are thought of as characteristically involving sacrifice or renunciation.30
380
within a community? Put this way, one might naturally answer these questions much as Himma indicates and go
on to conclude that Hart has not, in fact, taken a significant step beyond Austin. But one would come to these answers, I submit, only if one ignored the important lessons of
Harts inaugural lecture that is, only if one yanked the
words obligation and obligation rule out of context and
portrayed Hart as providing a definition in answer to question (a); and only if one fashioned a Hartian answer to
question (b) that for some reason ignored the differing contexts from which the question can be asked and answers to
it provided. But of course Hart explicitly rejected the utility
of definitions in legal theory, and so it would be unfair to
view him, in the passages cited above, as answering a question such as (a), just as it would be unfair to take him as
answering the question What is a social rule? by replying
simply that it is a social practice of a particular kind. As for
question (b), here the importance of context comes acutely
to the fore because we get very different answers depending
on the point of view from which the question is put.
Lets begin with the external, theoretical point of view of
our legal historian or sociologist. On this reading, the question asks how, from the perspective of such an external observer of a society and its workings, one could distinguish
social rules that function as obligation rules from those
that do not.32 Harts answer, of course, is that we would
look to those rules that bear the features he mentions: they
require personal sacrifice, are accompanied by serious social pressure and demands for conformity, and there is a
widespread belief that these responses are appropriate
because the rule protects what is taken to be a crucial
feature of social life or some highly prized feature of it.
Now consider these important points, so seemingly obvious,
yet in need of emphasis: the question so framed calls for a
32 Notice how Hart phrases his analysis: Rules are conceived and spoken of as
imposing obligations when; These rules are thought important because they
are believed to be necessary and so on (my emphasis).
381
W. J. WALUCHOW
382
35 Thanks to Otto Phillips, Fabio Shecaira, Imer Flores, Juan Vega, Ken Himma
and Enrique Caceres for helpful comments on earlier drafts of this paper.
383
PROBLEMA
Anuario de Filosofa
y Teora del Derecho
Resumen:
En este breve ensayo, intento responder a la crtica de Wilfrid Waluchow
sobre mi teora positivista de la obligacin jurdica, crtica que aparece
en su colaboracin de este nmero, Lessons from Hart. Waluchow sostiene, con perspicacia y elegancia, que mi teora fracasa al no distinguir entre el punto de vista interno y externo, y que ofrece una explicacin de la
obligacin jurdica desde el punto de vista externo. Intento refutar esta
interesante crtica al argumentar que la distincin entre el punto de vista
interno y externo fue hecho dentro del anlisis de Hart de los conceptos
centrales del derecho y que yo intento proporcionar una explicacin desde el mismo punto de vista que toma Hart cuando analiza conceptos jurdicos, el de la metodologa tradicional del anlisis conceptual.
Palabras clave:
Obligacin, obligacin jurdica, normas sociales, punto de vista interno, punto de vista externo.
Abstract:
In this brief essay, I attempt to reply to Wilfrid Waluchows critique of my
positivist theory of legal obligation, which appear in his contribution to this
volume, Lessons from Hart. Waluchow argues, with insight and elegance,
that my theory fails to distinguish between the internal and external point
of view, and gives an account of legal obligation from the external point of
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view. I attempt to rebut this interesting criticism by arguing that the distinction between the internal and external point of view was made inside
Harts analysis of the concepts central to law, and that I am attempting to
give an account from the same point of view that Hart takes when he analyzes legal concepts that of the methodology of traditional conceptual
analysis.
Keywords:
Obligation, Legal Obligation, Social Norms, Internal Point of
View, External Point of View.
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I. INTRODUCTION
In his outstanding paper Lessons from Hart,1 Wilfrid
Waluchow does me the honor of critiquing my attempt to
provide a comprehensive positivist account of legal obligation that covers both the rule of recognition that governs
the conduct of officials and the primary rules of obligation
that bind citizens.2 The starting points for my argument are
(1) that, as positivism insists, law is a social artifact all the
way down; and (2) that, according to Hart, Rules are conceived and spoken of as imposing obligations when the general demand for conformity is insistent and the social pressure brought to bear upon those who deviate or threaten to
deviate is great.3
The basic idea is that the quote in (2), understood as a
conceptual claim about the nature of social obligation, provides an adequate grounding for a comprehensive theory of
legal obligation Hart was obliged to give but never did, explaining only the second-order obligations of officials defined by the rule of recognition. Hart accomplished this by
recourse to what I take to be his theory of social norms and
obligations but, notably, had little to say about the legal
obligations of citizens.
This is problematic for two reasons. First, when we talk
about the obligations of law in legal practice, we are most
often speaking of the legal obligations of citizens generated
by the primary legal norms valid under the rule of recognition. This is not to say that the duties defined by certain
norms comprising the rule of recognition are not of theoretWil Waluchow, Lessons from Hart, Problema, n. 5, 2011.
Kenneth Einar Himma, A Positivist Theory of Legal Obligation, Problema, n.
5, 2011.
3 H. L. A. Hart, The Concept of Law (Revised ed.) (Oxford: Oxford University
Press, 1994), 86.
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ical importance, but Hart notes, correctly, that Austins basic starting point that law creates obligations is correct
and Austins theory was concerned with the legal obligations of citizens. This means not only that Hart lacks a
comprehensive theory of legal obligation, but also arguably
ignored the most important part of the problem.
Second, there is an element of unfairness involved. Hart
rejected Austins theory of law partly on the ground that
Austin couldnt distinguish a gunman from the state. That
is to say, that he found Austins account of legal obligation
confused the notion of being obligated with the notion of being obliged: one is obliged, not obligated, to conform to the
commands of a gunman and the legal system, on Harts
view of Austin, is nothing more than a gunman writ large.
According to Hart, Austin had explained no more than how
citizens are obliged to comply with the law. It is true that
Austin overlooked the rule of recognition and hence lacked
an essential piece of the story of legal obligation, believing
implausibly that sovereigns were incapable of legal limitation. Nonetheless, it seems unfair, among other things, to
reject Austins account of legal obligation, which applies
exclusively to citizens, and not offer something better.
In consequence, Hart lacked a comprehensive theory of
the normativity of law, one of the most important problems
in conceptual jurisprudence no matter how it is conceived. Theorists like Jules Coleman believe that it is sufficient to resolve the issue to explain how it is logically possible for law to create obligations or, otherwise put, make
intelligible laws ability to create legal obligations. On his
view, law purports to, but often fails, to create legal obligations.4 I have challenged this view elsewhere5 but, even if
4 Jules Coleman, Conventionality and Normativity, in Enrique Villanueva
(ed.), Legal and Political Philosophy. Social, Political, & Legal Philosophy, Volume 1,
(Amsterdam/New York, NY: 2002).
5 Kenneth E. Himma, Conceptual Jurisprudence and the Intelligibility of
Laws Claim to Obligate, in Michael ORourke, Joseph Keim-Campbell, and Harry
Silverstein (eds.), Topics in Contemporary Philosophy (Volume III): Law and Social
Justice (Boston: MIT Press, 2005).
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My claim in the paper is that it is the authorization of coercive enforcement mechanisms that constitutes a first-order
legally valid norm as having the binding force characteristically associated with obligations as a general matter. Moreover, this binding force is a way of describing the distinctive
reasons for action that obligations provide. Thus, a first-order legal obligation exists when conditions (1) through (5) are
satisfied. But the binding force and special reasons that legal obligations provide are constituted by authorization of
coercive enforcement mechanisms.
II. WALUCHOWS CRITIQUE
Waluchows subtle and important objection to my thesis
is that my account fails to overlook the idea that what constitutes the binding force of a legal obligation depends on
what point of view we take towards the obligation. As
Waluchow puts this insightful objection much more elegantly than I can, I will quote him here:
Lets now consider the following question[]. Under which
rules do obligations arise within a community? Put this way,
one might naturally answer these questions much as Himma
indicates and go on to conclude that Hart has not, in fact,
taken a significant step beyond Austin. [But] here the importance of context comes acutely to the fore because we get
very different answers depending on the point of view from
which the question is put.
Lets begin with the external, theoretical point of view. On
this reading, the question asks how, from the perspective of
an external observer of a society and its workings, one could
distinguish rules that function as obligation rules from those
that do not. Harts answer, of course, is that we would look
to those rules that bear the features he mentions: they require personal sacrifice, are accompanied by serious social
pressure and demands for conformity, and there is a widespread belief that these responses are appropriate because
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stead of merely something one should do), I would be surprised if anyone would answer no. The authorization of
coercive enforcement mechanisms is always a reason for
doing what the law requires even if it is not the best reason,
and it seems to be absolutely essential to the explanation of
the binding force of the obligation law generates. Of course,
someone who merely takes the external point of view towards the law will give the same answer.
It is important to acknowledge, of course, that many people will criticize behaviour simply because it breaks the law.
But people who criticize law-breaking on this ground view
the system as legitimate and the legal norm as being within
the scope of laws legitimate authority. Morally legitimate authorities are commonly supposed to generate content-independent obligations to obey, but these obligations are moral
in character. Accordingly, most people who criticize breaking a law simply because the law requires it are making
moral assertions that presuppose the legitimacy of the legal
system. But this is not a requirement of Harts theory, and
simply could not be because many people do not view laws
even in a system that is generally regarded as legitimate as
necessarily imposing legitimate requirements. For example,
nearly half of US citizens think it is illegitimate for the state
to redistribute income for the purpose of alleviating poverty
Second, if I am correct in thinking mandatory legal
norms necessarily create legal obligations, as Hart seems to
have, then it would have to be a conceptual truth that people in a legal system take the internal point of view towards
the law. But this is false. It is clearly possible that people
within a legal system take only the external point of view
towards the legal system or the law and hence would reject
the values the law promotes. And, indeed, Hart himself expressly acknowledges that it is not a conceptual truth that
citizens take the internal point of view towards the law or
the legal system.
Here it is crucial to note that if legitimate legal systems
give moral reasons to obey, it is uncontroversial among po394
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