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Hart’s theory represents the present state of legal positivism today. This does not mean that no improvements have been made since his theory was first formulated and presented to the public in a complete form in 1961. It is simply that these improvements have been minor. They do not pose a challenge to his system and in fact can be incorporated within it. The content of the theory remains in accordance with Hart’s basic original intuition that law comprises a union of primary and secondary rules. I. METHODOLOGY Hart’s methodology can be divided into a theory of definition and a theory of law. He greatly developed both topics and his methodology, just like his version of legal positivism, remains the dominant method of analytic philosophy today. A. Theory of Definition Hart first introduced his theory of definitions in his inaugural lecture as Holder of the Chair of Jurisprudence at Oxford in his article entitled: “Definition and Theory in Jurisprudence.” He formulated the problem of his article thus: “Questions such as those I have mentioned, ‘What is a State?’, ‘What is the law?’, ‘What is a right?’, have great ambiguity. The same form of words may be used to demand a definition or the cause or the purpose or the justification or the origin of a legal or political institution. But if, in the effort to free them from this risk of confusion with other questions, we rephrase these requests for definitions as ‘What is the meaning of the word “State”?’, ‘What is the meaning of the word “right”?’, those who ask are apt to feel uneasy, as if this had trivialized their question. For what they want cannot be got out of a dictionary, and this transformation of their question suggests it can. This uneasiness is the expression of an instinct which deserves respect: it emphasizes the fact that those who ask these questions are not asking to be taught how to use words in the correct way. This they know and yet are still puzzled. Hence it is no answer to this type of question merely to tender examples of what are correctly called rights, laws, or corporate bodies, and to tell the questioner if he is still puzzled that he is free to abandon the public convention and use words as he pleases. For the puzzle arises from the fact that though the common use of these words is known, it is not understood; and it is not understood because compared with most ordinary words these legal words are in different ways anomalous. Sometimes, as with the word ‘law’ itself, one anomaly is that the range of case to which it is applied has a diversity which baffles the initial attempt to extract any principle behind the application, yet we have the conviction that even here there is some principle and not an arbitrary convention underlying the surface differences; so that whereas it would be patently absurd to ask for elucidation of the principle in accordance, with which different men are called Tom, it is not felt absurd to ask why, within municipal law, the immense variety of different types of rules are called law, nor why municipal law and international law, in spite of striking differences, are so called.”1
H.L.A. Hart, “Definition and Theory in Clarendon Press, 1983, pp. 21-22.
Jurisprudence,” Essays in Jurisprudence and Philosophy, Oxford:
Just as Kelsen, Hart was wary of political bias infecting his analysis of law. He called this mistaken methodology, the anomaly of “theory growing on the back of definitions.” Consequently he strove for neutrality. “Hence, though theory is to be welcomed, the growth of theory on the back of definition is not. Theories so grown, indeed, represent valuable efforts to account for many puzzling things in law; and among these is the great anomaly of legal language—our inability to define its crucial words in terms of ordinary factual counterparts. But here I think they largely fail because their method of attack commits them all, in spite of their mutual hostility, to a form of answer that can only distort the distinctive characteristics of legal language.”2 His definition of a ‘legal right’ is therefore as follows: “I would, therefore, tender the following as an elucidation of the expression ‘a legal right’: (1) A statement of the form ‘X has a right’ is true if the following conditions are satisfied: (a) There is in existence a legal system. (b) Under a rule or rules of the system some other person Y is, in the events which have happened, obliged to do or abstain from some action. (c) This obligation is made by law dependent on the choice either of X or some other person authorized to act on his behalf so tahe either Y is bound to do or abstain from some action only if X (or some authorized person) chooses otherwise. (2) A statement of the form ‘X has a right’ is used to draw a conclusion of law in a particular case which falls under such rules.”3 B. Legal Theory Hart’s methodology may be considered as a combination of conceptual analysis and descriptive sociology. Indeed his book, The Concept of Law provides an elucidation of these methods in his attempt to analyze the concept “law”. “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 and political philosophy, or in sociology, rather than in law. The lawyer will regard the book as an essay in analytical jurisprudence, for it is concerned with the clarification of the general framework of legal thought, rather than with the criticism of law or legal policy. Moreover, at many points, I have raised questions which may well be said to be about the meaning of words. Thus I have considered: how ‘being obliged’ differs from ‘having an obligation’: how the statement that a rule is a valid rule of law differs from a prediction of the behaviour of officials; what is meant by the assertion that a social group observes a rule and how this differs from and resembles the assertion that its members habitually do certain things. Indeed, one of the central themes of the book is that neither
Id., pp. 25-26. Id., p. 35.
law nor any other form of social structure can be understood without an appreciation of certain crucial distinctions between two different kinds of statements, which I have called ‘internal’ and ‘external’ and which can both be made whenever social rules are observed. Notwithstanding its concern with analysis the book may also be regarded as an essay in descriptive sociology; for the suggestion that inquiries into the meaning of words merely throw light on words is false. Many important distinctions, which are not immediately obvious, between types of social situation or relationships may best be brought to light by an examination of the standard uses of the relevant expressions and of the way in which these depend on a social context, itself often left unstated. In this field of study it is particularly true that we may use, as Professor J. L. Austin said, ‘a sharpened awareness of words to sharpen our perception of the phenomena.”4 He aims to answer the question “What is law?,” noting that the question gives rise to a number of persistent perplexities. “Few questions concerning human society have been asked with such persistence and answered by serious thinkers in so many diverse, strange, and even paradoxical ways as the question ‘What is law?’ Even if we confine our attention to the legal theory of the past 150 years and neglect classical and medieval speculation about the ‘nature’ of law, we s hall find a situation not paralleled in any other subject systematically studies as a separate academic discipline. No vast literature is dedicated to answering the questions ‘What is chemistry?” or “What is medicine?’, as it is to the question ‘What is law?’ A few lines on the opening page of an elementary textbook is all that the student of these sciences is asked to consider; and the answers he is given are of a very different kind from those tendered to the student of law. No one has thought it illuminating or important to insist that medicine is ‘what doctors do about illnesses’, or ‘a prediction of what doctors will do’, or to declare that what is ordinarily recognized as a characteristic, central part of chemistry at all. Yet, in the case of law, things which at first sight look as strange as these have often been said, and not only said but urged with eloquence and passion, as if they were revelations of truths about law, long obscured by gross misrepresentations of its essential nature.”5 These perplexities persist despite the fact that most people know what the law means and can identify a law very readily and unproblematically. It concerns a deeper, more disturbing unease and disconcert. “When we reflect on the quite general ability of people to recognize and cite examples of laws and on how much is generally known about a standard case of a legal system, it might seem that we could easily put an end to this persistent question, ‘What is law?’, simply by issuing a series of reminders of what is already familiar. Why should we not just repeat the skeleton account of salient features of a municipal legal system which, perhaps optimistically, we put . . . into the mouth of an educated man? We can then simply say, ‘Such and such is the standard case of what is meant by “law” and “legal system”; remember that besides these standard cases you will also find arrangements in social life which, while sharing some of these salient features, also lack others of them. These are disputed cases where there can be no conclusive arguments for or against their classification.’
H.L.A. Hart, The Concept of Law, Oxford: Clarendon Press, 1961, “Preface,” p. v. Id., p. 1.
we have the essence of law. But attractive as this reduction of the complex phenomena of law to this simple element may seem. yet in retrospect it is apparent that it has centered almost continuously upon a few principal issues. is not ignorance or forgetfulness or inability to recognize the phenomena to which the word ‘law’ commonly refers. But it would have nothing else to recommend it.”7 The first issue is connected with the concept of obligation. at all times. but because the other threatens him with unpleasant consequences if he refuses. Speculation about the nature of law has a long and complicated history. The first. pp. may appear to be the gunman situation writ large. . To some it has seemed clear that in this situation where one person gives another an order backed by threats. . simplest sense in which conduct is no longer optional. and the only difference to be the relatively minor one. not because he is physically compelled in the sense that his body is pushed or pulled about. for within the sphere of non-optional obligatory conduct we can distinguish different forms. The gunman orders his victim to hand over his purse and threatens to shoot if he refuses. and in this sense of ‘oblige’. is when one man is forced to do what another tells him. obliges him to comply wit. so that confusion and a consequent need of greater clarity about them may coexist even in the minds of thoughtful men with a firm mastery of a knowledge of law. or at least ‘the key to the science of jurisprudence’. 82 . 4-5. Id. to be a distortion and a source of confusion even in the case of a penal statute where an analysis in these simple terms seems most plausible.. and it is the resolution to these themes which provides the key to the answer to the question. This is the starting-point of Austin’s analysis by which so much English jurisprudence has been influenced. to give rise to misunderstanding.”6 There are recurrent themes regarding the question of the nature of law. “The most prominent general feature of law at all times and places is that its existence means that certain kinds of human conduct are no longer optional but in some sense obligatory. For . it is clear that those who are most perplexed by the question ‘What is law?’ have not forgotten and need no reminder of the familiar facts which this skeleton answer offers them. The deep perplexity which has kept alive the question. 5-6. and provoked exaggerated and paradoxical assertions about law such as those we have already cited. that in the case of statutes. These were not gratuitously chosen or invented for the pleasure of academic discussion. it has been found.Such a way with the question would be agreeably short. they concern aspects of law which seem naturally. There is of course no doubt that a legal system often presents this aspect among others. “For there are certain recurrent main themes which have formed a constant focus of argument and counter-argument about the nature of law. pp. when examined closely. A penal statute declaring certain conduct to be an offence and specifying the punishment to which the offender is liable. How then do law and legal obligation 6 7 Id.. if the victim complies we refer to the way in which he was forced to do so by saying that he was obliged to do so. Yet this apparently simple characteristic of law is not in fact a simple one. the orders are addressed generally to a group which customarily obeys such orders.
and how they are related to.. that those who have seen in the close assimilation of law and morals nothing more than a mistaken inference from the fact that law and morals share a common vocabulary of rights and duties. So the assertion that ‘an unjust law is not a law’ has the same ring of exaggeration and paradox. These are at least as important as the similarity and convergence which we may also find. pp. there is one idea. “The third main issue perennially prompting the question ‘What is law?’ is a more general one. and nothing more pretentious. Yet here again theories that make this close assimilation of law to morality seem. But those who have found the key to the understanding of law in the notion of orders backed by threats. and uncertainty concerning this seemingly unproblematic notion underlies much of the perplexity about the nature of law. are what I mean by the law. if not consisting largely of. and those who have found it in its relation to morality or justice. if not falsity. as ‘statutes are not laws’ or ‘constitutional law is not law. pp. At first sight it might seem that the statement that a legal system consists. 6-7. What are rules? What does it 8 9 Id. These facts suggest the view that law is best understood as a ‘branch’ of morality or justice and that its congruence with the principles of morality or justice rather than its incorporation of orders and threats is of its ‘essence’. Further. should have protested against it in terms equally exaggerated and paradoxical. This is the doctrine characteristic not only of scholastic theories of natural law but of some contemporary legal theory which is critical of the legal ‘positivism’ inherited from Austin. Killing and the wanton use of violence are not only the most obvious examples of the coincidence between the prohibitions of law and morals. rules. orders backed by threats? This at all times has been one cardinal issue latent in the question ‘What is law?’. 83 .”8 The next recurring issue is also connected with the issue of obligation. Not only do law and morals share a vocabulary so that there are both legal and moral obligations. italics Hart’s. confusion.. Just as a legal system obviously contains elements closely connected with the simple case of orders backed by threats. which make up the history of legal theory. in general at any rate. alike speak of law as containing. italics Hart’s. and rights. In both cases alike there is a difficulty in identifying precisely the relationship and a temptation to see in the obviously close connection an identity. in the end. 7-8. and to leave insufficient room for differences in kind between legal and moral rules and for divergences in their requirements.’ It is characteristic of the oscillation between extremes. so equally obviously it contains elements closely connected with certain aspects of morality. but all municipal legal systems reproduce the substance of certain fundamental moral requirements.’”9 The third recurrent issue concerns the law’s connection with rules. that of justice which seems to unite both fields: it is both a virtue specially appropriate to law and the most legal of the virtues. ‘The prophecies of what the courts will do in fact. Id.differ from. of rules could hardly be doubted or found difficult to understand. We think and talk of ‘justice according to law’ and yet also of the justice and injustice of the laws. duties. “Moral rules impose obligations and withdraw certain areas of conduct from the free option of the individual to do as he likes. Yet dissatisfaction. often to confuse one kind of obligatory conduct with one another.
p.’ It is in this way that even skilled lawyers have felt that. 12 Id. when we recall the character of the three main issues which we have identified as underlying the recurrent question ‘What is law?’. in the sense of a rule by reference to which the correctness of the use of a word can be tested. The need for such a drawing of lines is often felt by those who are perfectly at home with the day-to-day use of the word in question. Yet the instinct which has often brought these three questions together under a single question or request for definition has not been misguided.”11 But it is not a definition a legal theorist is looking for. divide one kind of thing from another. 84 . Id. and how is it related to. though they know the law. Like a man who can get from one point to another in a familiar town but cannot explain or show others how to do it. moral obligation? What are rules and to what extent is law an affair of rules? To dispel doubt and perplexity on these three issues has been the chief aim of most speculation about the ‘nature’ of law. 8. but cannot state or explain the distinctions which. All of us are sometimes in this predicament: it is fundamentally that of the man who says. for. there is much about law and its relation to other things they cannot explain and do not fully understand. “Here then are the three recurrent issues: How does law differ from and how is it related to orders backed by threats? How does legal obligation differ from... italics Hart’s.”10 There are then. p. it is to advance legal theory by providing an improved analysis of the distinctive 10 11 Id. It is possible now to see why this speculation has usually been conceived as a search for the definition of law. as we shall show in the course of this book. ‘What then is time? If no one asks me I know: if I wish to explain it to one that asks I know not.’ The same predicament was expressed by some famous words of St. and also why the familiar forms of definition have done so little to resolve the persistent difficulties and doubts. three recurrent issues of law. but it seems clear. The underlying issues are too different from each other and too fundamental to be capable of this sort of resolution. Augustine about the notion of time.”12 If not a definition. Definition. is primarily a matter of drawing lines or distinguishing between one kind of thing and another. pp. to Hart. 13-14.mean to say that a rule exists? Do courts really apply rules or merely pretend to do so? Once the notion is queried. those who press for a definition need a map exhibiting clearly the relationships dimly felt to exist between the law they know and other things. they sense. major divergencies in opinion appear. 16. what then is the theorist after? “For its purpose is not to provide a definition of law. which language marks off by a separate word. “There are of course many kinds of definition besides the very simple traditional form which we have discussed. it is possible to isolate and characterize a central set of elements which form a common part of the answer to all three. This the history of attempts to provide concise definitions has shown. ‘I can recognize an elephant when I see one but I cannot define it. as the word suggests. that nothing concise enough to be recognized as a definition could provide a satisfactory answer to it. as it has been especially in the jurisprudence of this century.
as types of social phenomena. except by a minority of hardened offenders. How many of the group must in these various ways treat the regular mode of behavior as a standard of criticism. members of a particular community engage in the habit of shaking hands as a form of greeting. II. the practice was only a habit. and morality. To the substance of his work therefore. But such general convergence or even identity of behaviour is not enough to constitute the existence of a rule requiring that behaviour: where there is such a rule deviations are generally regarded as lapses or faults open to criticism. Prior to that point. For example. and not yet a rule. 16-17. In order that there should be such 13 Id. where there are such rules. and how often and for how long they must do so to warrant the statement that the group has a rule. “First. in short. From this insight. merely a habit. it was merely a practice or custom that most people complied with. There was no feeling or sense of obligation that they had to shake hands upon meeting people. pp. not only is such criticism in fact made but deviation from the standard is generally accepted as a good reason for making it. Nobody told them to do so. and threatened deviations meet with the pressure for conformity. as are demands for compliance with the standard when a deviation is threatened. 85 . In other words. At that point. wherein he attempts to answer the question ‘What is law?’ by means of resolving the three recurrent issues of law satisfactorily. though the forms of criticism and pressure differ with different types of rule. coercion. Moreover. In explaining a social rule. The third feature distinguishing social rules from habits is implicit in what has already been said. Perhaps one person did it to another and the practice caught on. are not definite matters. I now proceed. or made with good reason. Deviation from the regular course need not be a matter for any form of criticism.”13 Consequently. Hart distinguishes a habit from a rule in three important ways. but it is one so important and so frequently disregarded or misrepresented in jurisprudence that we shall elaborate it here. such criticism and demands are generally regarded as legitimate. Secondly. SOCIAL RULES Rules provide the focus of Hart’s theory. Criticism deviation is regarded as legitimate or justified in this sense. they need not worry us more than the question as to the number of hairs a man may have and still be bald. It becomes a rule when it has acquired a certain degree of importance that the members feel it to be an obligation to shake hands upon meeting and consider people rude who refuse to do it. for the group to have a habit it is enough that their behavior in fact converges.. he first distinguishes a rule from a habit. When a habit is general in a social group. It is a feature which throughout this book we shall call the internal aspect of rules. We need only remember that the statement that a group has a certain rule is compatible with the existence of a minority who not only break the rule but refuse to look upon it as a standard either for themselves or others. he is concerned to explain when a habit becomes a rule. this generality is merely a fact about the observable behaviour of most of the group. both by those who make them and those to whom they are made.structure of a municipal legal system and a better understanding of the resemblances and differences between law. I now turn to the substantive aspects of Hart’s theory.
This ‘hermeneutic’ approach—that is. or even know that the behaviour in question is general. 54-55. Id. data on which different observers would always agree. Hart introduces a method of scientific inquiry. and the American legal realists (to some extent reacting to Langdell’s views) emphasizing what 14 15 Id. First. there must exist what Hart calls the internal aspect. Hart elaborates on this internal aspect.. Christopher Columbus Langdell’s view of legal theory as the search for the system of basic principles within the law. What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard and that this should display itself in criticism (including self-criticism). When they say they ‘feel bound’ to behave in a certain ways they may indeed refer to these experiences. Secondly. There is no contradiction in saying that people accept certain rules but experience no such feelings of compulsion. p. It is enough that each for his part behaves in the way that others also in fact do.”15 By means of the internal aspect of rules. of feeling bound. But such feelings are neither necessary nor sufficient for the existence of ‘binding’ rules. demands for conformity. The idea is that one cannot understand a social system unless one understands how the people who created the system or who participate in the system perceive it. where rules are generally accepted by a social group and generally supported by social criticism and pressure for conformity. pp. but also calls for conformity against the deviators. ‘must’. The ‘scientific’ approach in social theory would rely only on data that was ‘objective’. appeal to the standard is a good reason for behaving in accordance with the standard.a habit no members of the group need in any way think of the general behaviour. for example. in addition to the external aspect which it shares with a social habit and which consists in the regular uniform behaviour which an observer could record. all of which find their characteristic expression in the normative terminology of ‘ought’. Finally. ‘right’ and ‘wrong’. 86 . and in acknowledgment that such criticism and demands are justified. still less need they strive to teach or intend to maintain it. there exist three characteristics in order for a social rule to exist. individuals may often have psychological experiences analogous to those of restriction or compulsion. there must exist such a convergence of behavior so that deviations from the standard of behavior call not only for criticism among those who engage in the practice against those who do not behave in accordance with the way the majority behaves.. By contrast. The ‘scientific’ approach to legal theory might be exemplified in various theorists’ writings: for example. It is not simply a matter of feelings. Rather it is a critical reflective attitude: “The internal aspect of rules is often misrepresented as a mere matter of ‘feelings’ in contrast to externally observable physical behaviour. now referred to as hermeneutic. and ‘should’. 56. if a social rule is to exist some at least must look upon the behaviour in question as a general standard to be followed by the group as a whole. giving priority to trying to understand how other people perceive their situation is always in tension with those who want social theory to be more scientific. A social rule has an ‘internal’ aspect. “This is the context for analysing Hart’s concept of the internal aspect of rules. which adopts an internal attitude towards the phenomenon or practice the scientist or theorist is investigating. No doubt.”14 Therefore.
Under rules of the one type. He referred to it as a social structure with only primary rules of obligation. but to the creation or variation of duties or obligations. for they provide that human beings may by doing or saying certain things introduce new rules of the primary type. it simply is not adequate for a full understanding of law. Jurisprudence: Theory and Context. p. human beings are required to do or abstain from certain actions. ‘the methodology of the empirical sciences is useless. “If a society is to live by primary rules alone. ‘the key to the science of jurisprudence. what is needed is a ‘hermeneutic’ method which involves portraying rule-governed behaviour as it appears to the participants.”17 It is Hart’s contention that “in the combination of these two types of rule there lies what Austin wrongly claimed to have found in the notion of coercive orders. pp. the perceptions of the people who are following the rules. rules of the second type confer powers. theft. and who perceive themselves as doing so. it was hopeless to elucidate even the most elementary forms of law. Id. public or private. must clearly be satisfied. 87 . p. . Rules of the other type are in a sense parasitic upon or secondary to the first. and also to give guidance to citizens. Rules of the first type concern actions involving physical movements or changes. courts or officials of any kind. Rules of the first type impose duties.’”18 He then conducted a thought experiment in order to find out the key elements to law or a legal system. Law is a social institution to set up to achieve certain human purposes. 2003.. if we are to do justice to the complexity of a legal system. who (according to Hart) ‘claimed that the only method of representation of the law fit to figure in a modern rational science of law was one which shared the structure and logic of statements of empirical science. if they are to coexist in close proximity to each 16 17 Brian Bix. namely. extinguish or modify old ones. in general. One can only understand purposive behaviour and normative (rule-following) behaviour if one leaves one’s spectator’s perspective and tries to understand the perceptions of the participants in the system. to understand ‘any form of normative social structure’. rules of the second type provide for operations which lead not merely to physical movement or change. He then explained two kinds of rules: “It is true that the idea of a rule is by no means a simple one: we have already seen . 78-79. London: Sweet and Maxwell. The first of these conditions is that the rules must contain some form of restrictions on the free use of violence.. and deception to which human beings are tempted but which they must. 40. there are certain conditions which. He imagined a society without a legislature. 79. whether they wish to or not. THE KEY TO THE SCIENCE OF JURISPRUDENCE Hart argued that without the idea of a rule.judges ‘actually do’ as contrasted with what they are saying that they are doing. .”16 III. or in various ways determine their incidence or control their operations. In Hart’s terms. which may well be considered the basic or primary type. to discriminate between two different though related types.” Hart’s argument is that whatever advantage a ‘scientific’ approach might have. repress. that is. the need. granted a few of the most obvious truisms about human nature and the world we live in. 18 Id. Hart also specifically mentioned the work of the Scandinavian Legal Realist Alf Ross.
This. 89. the rules by which the group lives will not form a system. though such a society may exhibit the tension. Such rules are in fact always found in primitive societies of which we have knowledge. 90-91. is to endure: for otherwise those who reject the rules would too little social pressure to fear.other. 21 Id. “In the first place. and for these operations to be possible there must rules of a sort different from the primary rules. either by eliminating old rules or introducing new ones: for. such a procedure and the acknowledgement of either authoritative text or persons involve the existence of rules of a type different from the rules of obligation or duty which ex hypothesi are all that the group has. This too is confirmed by what we know of primitive communities where. whereby courses of conduct once thought optional become first habitual or usual..”21 19 20 Id. Each individual would simply have fixed obligations or duties to do or abstain from doing certain things. without any identifying or common mark. It might indeed be very often the case that others would benefit from the performance of these obligations yet if there are only primary rules of obligation they would have no power to release those bound from performance or to transfer to others the benefits which would accrue from performance. The first of these defects is the lack of a rule of recognition. approximately equal in physical strength. but will simply be a set of separate standards. where deviation once severely dealt with. beyond those who accept the rules and those who reject the rules except where fear of social pressure induces them to conform. again the possibility of doing this presupposes the existence of rules of a different type from the primary rules of obligation by which alone society lives. and then obligatory. They will in this respect resemble our own rules of etiquette. italics Hart’s. if so loosely organized a society of persons. of deliberately adopting the rules to changing circumstances.. This defect in the simple social structure of primary rules we may call its uncertainty. that of staticity.. though there are dissidents and malefactors. Id. and the converse process of decay. except of course that they are the rules which a particular group of human beings accepts. in such a society. though never perhaps fully realized in any actual community. already described. plainly. pp. p. The only mode of change in the rules known to such a society will be the slow process of growth. “A second defect is the static character of the rules. 88 . In an extreme case the rules may static in a more drastic sense. Secondly. 90. There will be no means. is worth considering because the remedy for it is something very characteristic of law. p.”20 There is a second defect.”19 Such a simple society will suffer from certain defects and will require supplementation in various ways. the majority live by the rules seen from the internal point of view. For such operations of release or transfer create changes in the initial positions of individuals under the primary rules of obligation. either by reference to some authoritative text or to an official whose declarations on this point are authoritative. it is plain that the latter cannot be more than a minority. For. there will be no procedure for settling this doubt. together with a variety of others imposing on individuals various positive duties to perform services or make contributions to the common life. italic’s Hart’s. Hence if doubts arise as to what the rules are or as to the precise scope of some given rule. are first tolerated and then pass unnoticed.
91. It may. and the smoldering vendettas which may result from self help in the absence of an official monopoly of ‘sanctions’. by no more than an authoritative list or text of the rules is to be found in a written document or carved on some public monument. and other forms of social pressure involving physical effort or the use of force. continue interminably.. It is obvious that the waste of time involved in the group’s unorganized efforts to catch and punish offenders.”22 The remedy to these defects lies in supplementing the primary rules of obligation with secondary rules. in itself. Thus they may all be said to be on a different level from the primary rules. since each remedy brings with it many elements that permeate law: certainly all three remedies together are enough to convert the regime of primary rules into what is indisputably a legal system. Lack of such final and authoritative determinations is to be distinguished from another weakness associated with it. No doubt as a matter of history this step from the pre-legal to the legal may be accomplished in distinguishable stages. eliminated. This will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts.”24 To the defect of uncertainty. “The introduction of the remedy for each defect might. of which the first is the mere reduction to writing of hitherto unwritten rules. 91. Hart supplements the simple social structure of primary rules with the rule of recognition. italics Hart’s. italics Hart’s. simple or complex. The history of law does. 92. Id. p. in any but the smallest societies. They specify the ways in which the primary rules may be conclusively ascertained.. nd the fact of their violation conclusively determined. if there is no agency specially empowered to ascertain finally. the fact of violation. be considered a step from the pre-legal into the legal world.The third defect is that of inefficiency. for they are all about such rules. in the sense that while primary rules are concerned with the actions that individuals must or must not do. “The simplest form of remedy for the uncertainty of the regime of primary rules is the introduction of what we shall call a ‘rule of recognition’. as in the early law of many societies. This is not itself the crucial 22 23 Id. p. varied. 89 . may be serious. The existence of such a rule may take any of a huge variety of forms. “The third defect of this simple form of social life is the inefficiency. This is the fact that punishments for violations of the rules.”23 It constitutes a step from the pre-legal into the legal world. strongly suggest that the lack of official agencies to determine authoritatively the fact of violation of the rules is a much more serious defect. “(Secondary) rules have important features in common and are connected in various ways. p. italics Hart’s. however. 24 Id.. introduced. Disputes as to whether an admitted rule has or has not been violated will always occur and will. for many societies have remedies for this defect long before the other. these secondary rules are all concerned with the primary rules themselves. and authoritatively. are not administered by a special agency but are left to the individuals affected or to the group at large.
. 25 26 Id. be taken as a sufficient proof of due enactment.”25 The second remedy is that of rules of change. instead of identifying rules exclusively by reference to a text or list they do so by reference to some general characteristic possessed by the primary rules. . or their relation to judicial decisions. Moreover. the rule of recognition will simply specify enactment as the unique identifying mark or criterion of validity of the rules. as by the common subordination of custom or precedent to statute. in the simple operation of identifying a given rule as possessing the required feature of being an item on an authoritative list of rules we have the germ of the idea of legal validity. In a developed legal system the rules of recognition are of course more complex. and to eliminate old rules. there correspond the rules of adjudication as a remedy. such a rule brings with it many elements distinctive of law. Such complexity may make the rules of recognition in a modern legal system seem very different from the simple acceptance of an authoritative text: yet even in this simplest form. besides specifying the persons who are to legislate. in a simple way. it is in terms of such a rule. Where there is such an acknowledgement there is a very simple form of a secondary rule: a rule for conclusive identification of the primary rules of obligation. italics Hart’s. under the rules of recognition. though it is a very important one: what is crucial is the acknowledgement of reference to the writing or inscription as authoritative. i. or their long customary practice. Such rules of change may be very simple or very complex: the powers conferred may be unrestricted or limited in various ways: and the rules may. where more than one of such general characteristics are treated as identifying criteria. as the proper way of disposing of doubts as to the existence of the rule. though it need not refer to all the details of procedure involved in legislation. Further. This will be the case for example in the imaginary kingdom of Rex I depicted in Chapter IV: there the rule of recognition would simply be that whatever Rex I enacts is law. By providing an authoritative mark it introduces. provision may be made for their possible conflict by their arrangement in an order of superiority. define in more or less rigid terms the procedure to be followed in legislation. the idea of a legal system: for the rules are now not just a discrete unconnected set but are.e. and not in terms of orders backed by threats. there will be a very close connexion between the rules of change and rules of recognition: for where the former exists the latter will necessarily incorporate a reference to legislation as an identifying feature of the rules. although in embryonic form. 90 . Of course if there is a social structure so simple that the only ‘source of law’ is legislation. The remedy for the static quality of the regime of primary rules consists in the introduction of what we shall call ‘rules of change’. Id. 93. The simplest form of such a rule is that which empowers an individual or body of persons to introduce new primary rules for the conduct of the life of the group. pp. This may be the fact of their having been enacted by a specific body. or of some class within it. As we have already argued . unified. Plainly. that the ideas of legislative enactment and repeal are to be understood.”26 To the third defect of inefficiency.. . p. italics Hart’s.step. the latter being a ‘superior source’ of law. 92-93. Usually some official certificate or official copy will..
they do not impose duties but confer judicial powers and a special status on judicial declarations about the breach of obligations. of authority.”27 This union of primary and secondary rules comprises both the heart of a legal system such that Hart called it the “key to the science of jurisprudence. judgments may not be couched in general terms and their use as authoritative guides to the rules depends on a somewhat shaky inference from particular decisions. So the rule which confers jurisdiction will also be a rule of recognition. and the reliability of this must fluctuate both with the skill of the interpreter and the consistency of the judges. It is true that this form of rule of recognition. and adjudication. Besides these resemblances to the other secondary rules. in the use of those rules as the basis of criticism. best elucidated in terms of this combination of elements.“The third supplement to the simple regime of primary rules. will be very imperfect. This requires more detailed attention in the analysis of legal and political concepts than it has usually received. Indeed. consists of secondary rules empowering individuals to make authoritative determinations of the question whether on a particular occasion. Like the other secondary rules these are on a different level from the primary rules: though they may be reinforced by further rules imposing duties on judges to adjudicate. such rules will also define the procedure to be followed. 94-95. a primary rule has been broken. these cannot avoid being taken as authoritative determinations of what the rules are. but use the rules as standards for the appraisal of their own and others’ behaviour. change. legislation and jurisdiction. pp. and of an official require a similar analysis if the obscurity which still lingers about them to be dissipated. and we shall call the secondary rules which confer the power to make them ‘rules of adjudication’. a system which has rules of adjudication is necessarily also committee to a rule of recognition of an elementary and imperfect sort. “If we stand back and consider the structure which has resulted from the combination of primary rules of obligation with the secondary rules of recognition. Not only are the specifically legal concepts with which the lawyer is professionally concerned. Unlike an authoritative text or a statute book. validity and source of law.. if courts are empowered to make authoritative determinations of the fact that a rule has been broken. such as those of obligation and rights. The concepts (which bestride both law and political theory) of the state. identifying the primary rules through the judgments of the courts and these judgments will become a ‘source’ of law. 91 . italics Hart’s.” but also a powerful conceptual tool by which Hart will proceed to analyze the concepts of law and of legal systems. The minimal form of adjudication consists in such determinations. The reason why an analysis in these terms of primary and secondary rules has this explanatory power is not far to seek. Besides identifying the individuals who are to adjudicate. intended to remedy the inefficiency of the social pressure. This is so because. and as the 27 Id. inseparable from the minimum form of jurisdiction. Under the simple regime of primary rules the internal point of view is manifested in its simplest form. but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist. rules of adjudication have intimate connexion with them. Most of the obscurities and distortions surrounding legal and political concepts arise from the fact that these essentially involve reference to what we have called the internal point of view: the view of those who do not merely record and predict behaviour conforming to rules. and sanction. it is plain that we have here not only the heart of a legal system.
“The sense in which the rule of recognition is the ultimate rule of a system is best understood if we pursue a very familiar chain of legal reasoning. provides criteria for the assessment of the validity of other rules. but its validity is assumed because its existence can be shown as a matter of fact. like the intermediate statutory order and statute. In such a manner is its validity and existence distinguished from the other rules or laws in the legal system. italics Hart’s. We may query the validity of the statutory order and assess its validity in terms of the statute empowering the minister to make such orders. social pressure. italics Hart’s. in order to answer the question.. Is this purported by-law of the Oxfordshire County Council valid? Yes: because it was made in the exercise of the powers conferred. internal aspect we need to see the different ways in which the law-making operations of the legislator. Finally when the validity of the statute has been queried and assessed by reference to the rule that what the Queen in Parliament enacts is law.justification of demands for conformity. and other ‘acts-in-the-law’ are related to secondary rules. Hart has this to say about the latter: “We may say that a criterion of legal validity or source of law is supreme if rules identified by reference to it are still recognized as rules of the system. 92 . THE RULE OF RECOGNITION Hart’s rule of recognition plays the same role as the basic norm in Kelsen’s coercive order does. and in accordance with the procedure specified. even if they conflict with rules identified by reference to the other criteria. At this stage. It provides the criteria by which the validity of other rules of the system is assessed. by a statutory order made by the Minister of Health. These include the notions of legislation. but there is a standing possibility of doing so. At this first stage the statutory order provides the criteria in terms of which the validity of the by-law is assessed. 30 Id. the distinction between the ultimacy of the rule of recognition and the supremacy of one of its criteria deserves attention. There is a constant pull towards an analysis of these in the terms of ordinary or ‘scientific’. but it is also unlike them in that there is no rule providing criteria for the assessment of its own legal validity. But this can only reproduce their external aspect: to do justice to their distinctive.”30 Moreover. jurisdiction. we must. “In this respect. generally. pp.. If the question is raised whether some suggested rule is legally valid. the adjudication of a court. 95-96. the range of what is said and done from the external point of view is much extended and diversified. There may be no practical need to go farther. 103-104.”28 IV. Id. With this extension comes a whole set of new concepts and they demand a reference to the internal point of view for their analysis. the rule of recognition is not merely presupposed. With the addition to the system of secondary rules. private and public. however. and punishment. validity and. of legal powers. as 28 29 Id.”29 This is how Hart defines the ultimacy of a rule of recognition. whereas rules identified by reference to the latter are not so recognized if they conflict with the rules identified by reference to the same criterion.. as Kelsen’s basic norm is. Reference to this most elementary manifestation of the internal point of view is required for the analysis of the basic concepts of obligation and duty. we are brought to a stop in inquiries concerning validity: for we have reached a rule which. p. fact-stating or predictive discourse. pp. use a criterion of validity provided by some other rule. the exercise of private or official powers. 103. This was explained in the previous chapter.
”31 Hart also distinguishes efficacy from validity in a manner bearing a great similarity with that of Kelsen. It would however be wrong to say that statements of validity ‘mean’ that the system is generally efficacious. For though it is normally pointless or idle to talk of the validity of a rule of a system which has never established itself or has been discarded.”32 Moreover. the officials of the legal system must exhibit the appropriate attitude towards it. From the inefficacy of a given rule.. To insist on applying a system of rules which had either never actually been effective or had been discarded would. which may or may not count against its validity. Its existence is a matter of fact. is to cling to the criteria of the old regime. unless the rule of recognition of the system includes among its criteria. and private persons in identifying the law by referenced to certain criteria. the provision (sometimes referred to as a rule of obsolescence) that no rule is to count as a rule of the system if it has long ceased to be efficacious. 93 . given the centrality and importance of the rule of recognition. One who makes an internal statement concerning the validity of a particular rule of the system may be said to presuppose the truth of the external statement of fact that the system is generally efficacious. For the normal use of internal statements is in such a context of general efficacy. in the case of a new system. and rejecting the new. practice of the courts. except in special circumstances mentioned below. In such cases it would be generally pointless either to assess the rights and duties of particular persons by reference to the primary rules of a system or to assess the validity of any of its rules by reference to its rules of recognition. that it had never established itself as the legal system of a given group. none the less it is not meaningless nor is it always pointless. as some do. For whereas a subordinate rule of a system may be valid and in that sense ‘exist’ even if it is generally disregarded. or. and one way of nursing hopes for the restoration of an old social order destroyed by revolution. 107. we must distinguish a general disregard of the rules of the system. the rule of recognition exists only as a complex. In either case..in others a rule of recognition is unlike other rules of the system. be as futile as to assess the progress of a game by reference to a scoring rule which had never been accepted or had been discarded. italics Hart’s. This may be so complete in character and so protracted that we should say. The assertion that it exists can only be an external statement of fact. it is plain that there is no necessary connexion between the validity of any particular rule and its efficacy. pp. This is implicitly done by the White Russian who still claims property under some rule of descent which was a valid rule of Tsarist Russia. that it had ceased to be the legal system of the group. 100-101. pp. 31 32 Id. If by ‘efficacy’ is meant that the fact that a rule of law which requires certain behaviour is obeyed more often than not. the normal context or background for making any internal statement in terms of the rules of the system is absent. One vivid way of teaching Roman Law is to speak as if the system were efficacious still and to discuss the validity of particular rules and solve problems in their terms. Id. “Some of the puzzles connected with the idea of legal validity are said to concern the relation between the validity and the ‘efficacy’ of law. in the case of a once-established system. but normally concordant. officials.
on the other hand. and made no criticism of those who did not respect this rule of recognition.“(The rule of recognition). common standard of correct judicial decision. pp. “Here (in a complex modern state) surely the reality of the situation is that a great proportion of the ordinary citizens—perhaps a majority—have no general conception of the legal structure of its criteria of validity. or even trace this obligation to a more general obligation to respect the constitution. but is logically a necessary condition of our ability to speak of the existence of a single legal system. and. They must regard these as common standards of official behaviour and appraise critically their own and each other’s deviations as lapses. though not always. if it is to exist at all. be critically concerned with such deviations as lapses from standards. He may obey it for a variety of different reasons and among them may often.. The second condition must also be satisfied by the officials of the system. be the knowledge that it will be best for him to do so. must be regarded from the internal point of view as a public. though in a healthy society they will in fact often accept these rules as common standards of behaviour and acknowledge an obligation to obey them. we would be at a lost to describe the situation. and not as something which each judge merely obeys for his part only. 112-113. The first condition is the only one which private citizens need satisfy: they may obey each ‘for his part only’ and from any motive whatsoever. Of course 33 34 Id. 94 . 111. In the interval between these vagaries of judicial behaviour and the chaos which would ultimately ensue when the ordinary man was faced with contrary judicial orders. For this depends on the acceptance. We would be in the presence of a lusus naturae worth thinking about only because our awareness of what is often too obvious to be noticed. Individual courts of the system though they may. on occasion. its rules of recognition specifying the criteria of validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials. “There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. He will be aware of the general likely consequences of disobedience: that there are officials who may arrest him and others who will try him and send him to prison for breaking the law. the citizens need not exhibit such an attitude. of common standards of legal validity.”34 This brings me to discuss the two necessary and sufficient conditions for the existence of a legal system. The law which he obeys is something which he knows of only as ‘the law’. Most of them must merely display what Austin called a ‘habit of obedience’ towards the laws of the legal system. Id.”33 On the other hand. at this crucial point. the characteristic unity and continuity of a legal system would have disappeared.. in general. If only some judges acted ‘for their part only’ on the footing that what the Queen in Parliament enacts is law. On the one hand those rules of behaviour which are valid according to the system’s criteria of validity must be generally obeyed. which are essentially common or public. So long as the laws which are valid by the system’s tests of validity are obeyed by the bulk of the population this surely is all the evidence we need in order to establish that a given legal system exists. This is not merely a matter of the efficiency or health of the legal system. deviate from these rules must. pp.
Raz’ internal criticism faulted his theory for lacking sufficient purity in positivist values by advocating what was later called an ‘inclusive’ version of positivism. But where there is a union of primary and secondary rules. there is a distinction between simple legal rules and somewhat more sophisticated meta-rules. since there are no officials. 95 . COMMENTS AND CRITICISM Hart’s theory of law can be criticized on four points. The society in which this was so might be deplorably sheeplike. by P. If. There is a distinction between rules imposing duties and rules conferring powers. 113-114. “The Phenomenon of Law. italics Hart’s. “Hart lays great emphasis on another distinction among rules. Finally. the acceptance of the rules as commons standards for the group may be split off from the relatively passive matter of the ordinary individual acquiescing in the rules by obeying them for his part alone. the most fruitful way of regarding a legal system. The first concerns his distinction between primary and secondary rules. and those which lead to the creation of duties or obligations. in contrast to his ‘exclusive’ positivism or hard positivism. ed. only officials might accept and use the system’s criteria of legal validity. The next two are external criticisms due to Dworkin. which is. A. In the simpler structure. here.”36 35 36 Id. In this more complex system..” Law. and believes that this distinction furnishes him with ‘the key to the science of jurisprudence’. We need not be surprised at this duality. But the distinction is uncharacteristically unclear.it is also true that besides these there will be many primary rules which apply to officials in their merely personal capacity which they need only to obey. In an extreme case the internal point of view with its characteristic normative use of legal language (‘This is a valid rule’) might be confused to the official world. Lucas. The assertion that a legal system exists is therefore a Janus-faced statement looking both towards obedience by ordinary citizens and to the acceptance by the officials of the secondary rules as critical common standards of official behaviour. the internap point of view is not widely disseminated there could not logically be any rules. The Conflation of the Distinction between Primary and Secondary Rules Hart’s distinction between primary and secondary rules can be made more precise as he appears to conflate three different distinctions. Morality. It seems to be a conflation of at least three different distinctions. In Chapter V he distinguished primary from secondary rules. Clarendon Press: 1997. Oxford. pp. or soft positivism. as we have argued.R.”35 V. It is merely the reflection of the composite character of a legal system as compared with a simpler decentralized pre-legal form of social structure which consist only of primary rules.S. who challenged Hart’s claim regarding the existence of a rule of recognition and maintained that his theory was beset by what he called the semantic sting. the sheep might end in the slaughter-house. the rules must be widely accepted as setting critical standards for the behaviour of the group. But there is little reason for thinking that it could not exist or for denying it the title of the legal system. Hacker and Joseph Raz. pp. 85-98. and there is the ghost of a positivist distinction between rules concerning actions involving physical movements or changes. and Society.M. J.
I have not assaulted you. 12) or whether the witnesses have seen her sign it only in a mirror. The distinction between rules which impose duties and rules which confer powers Rules which impose duties and rules which confer powers are not so much distinct as correlative. can ever hope to seduce his own wife. Hart also mistakenly implies that one is more fundamental than another. undertaken for social reasons in a social context.”37 2. are clearly primary rules in Hart’s view. and whether I had stolen it or not might turn on whether her will leaving it me was valid or not—on whether she had signed it at the top. seduction. which is not necessarily the case. If after Aunt Agatha’s funeral I walk out of her house with a Sevre dinner service. would be entirely lawful if done by a policeman on a suspected criminal resisting arrest. 96 . I am stealing it unless she left it me. although less obviously. p. and those imposing the latter are only the secondary. p. too. The distinction between rules concerning actions involving physical movements and those which create duties It is the social aspect of the rule rather than its physical component which render rules relevant and significant to law and legal theory. and the ways in which having a legal obligation cannot be reduced to being obliged by the threat of sanctions to act in a particular fashion. not being visibly present to her (as in Dorothy Sayer’s 37 Id. and fornication. Or.. In spite of the inadequacies he perceives in Austin’s analysis. The Concept of Law. and the rules prescribing the procedure for obtaining a driving and a vehicle license interlock. but equally clearly presuppose an already intelligible concept of marriage—no man. although I may have hurt you as much as if I had been administering corporal punishment: and physical actions which would be quite illegal if performed by me on you. since it requires men to do certain actions whether they wish to or not. 87.1. with social consequences and often endued with a social significance. Hart tends to assume that having an obligation is more fundamental than having a power. The laws prohibiting rape. Most of our actions are social actions. my obligation to pay taxes derives from a rule Hart would reckon as primary. It is a mistake to try to peel off the social or legal characterization of actions from a basic description in behaviouristic terms. Stumbling into you differs from banging into you only in that I didn’t mean to: if I swat a horse-fly that is about to feast on your sunbathing thigh. Laws seldom characterize actions by reference to mere physical movement. with Hart’s favourite examples of solemnizing a marriage or making a will. The rules proscribing my driving a self-propelled vehicle on the public highway. and yet is characteristically discharged by my signing a cheque. instead of the bottom (cf. So. unless I and it are licensed. to take a very different case. adultery. “The distinction between rules which impose duties and rules which confer powers likewise softens under scrutiny. so that rules imposing the former are primary. I cannot explain the one except with reference to the other. But really the rules are correlative. Equally. including therefore laws defining the conditions under which property may be disposed of. however attractive. Not that it is a useless distinction—it remains a valuable tool for analytic jurisprudence—but it is neither as fundamental nor as directed as Hart supposes. which varies the duties and obligations of a banker. but construe them in a social context and often with reference to the agent’s intention. the laws against theft presuppose laws of property.
The rule of recognition need be neither explicit nor clear. however. it need not have been formulated as explicitly and clearly as Hart did. and the only question left is whether it should none the less be disobeyed. For rules imposing duties apply only in certain circumstances and subject to some exceptions. 88-89. even the rule prohibiting homicide does not apply to soldiers in time of war. Any system. These examples are. Moreover. It therefore may not be a very usable criterion of validity. can be specified and identified. and rests upon a number of tacit understandings about the way in which various functionaries will cooperate and will be guided by public interests rather than private purposes. which imposes duties will also confer rights and powers. and sometimes itself an object of controversy. because for the most part king and parliament were working together rather than in opposition. It may be a matter of considerable difficulty to say exactly what the rule of recognition is. Every primary rule is correlative with some secondary rules. and the rule is correctly seen as imposing a duty rather than conferring a power. 97 . and thus possess the power of making it lawful for me to do what I want to do. and enforced none the less.Unnatural Death). in some cases such purposes can be achieved only by devious or dishonest manoeuvres. and since I have control of circumstances. and vice versa.”38 3. only a meta-rule. The distinction between rules and meta-rules The criticism of the distinction between rules and meta-rules focus on the rule of recognition. pp. It was not clear for centuries what the fundamental law of the land was. So the distinction is valuable. But this is to abstract too much and put on the rule of recognition more weight than it can properly bear. meta38 Id. and shifted sovereignty from the monarch to parliament. It was only very gradually that it changed in England. I shall argue. applied. If the defining property of a law is that it should satisfy the rule of recognition of a regime whose laws are generally enforced. Legal disputes were much more about the scope or application of laws rather than their validity. as Hart himself points out. which they implicitly confer on various people. Of course. rather than explicit. but in other cases the emphasis is reversed. after all. To take the most favourable case to Hart’s thesis. persons defending themselves against violent attack. and thus as conferring powers to restyle the legal position so as to accomplish one’s purposes. “Hart is at his unhappiest in his controversy with Professor Fuller over the legal status of wicked edicts enacted by an iniquitous regime. which need not be formulated with perfect explicitness and clarity. italics Lucas’. and. then the decrees of the Nazis were valid law. I can take steps to put myself beyond the scope of the rule or within the ambit of some exception. but laws were made. typical. The rule of recognition is implicit. and he cannot reasonably regard the rules imposing the former as more primary than those conferring the latter. so rules imposing duties create also a web of interlinked rights and powers. or executioners carrying out judicial sentence of death. not always fully formulated. Jesebel was able to compass Naboth’s death under due form of law. Laws can be manipulated. It is. Even straightforward prohibitions can be read as giving guide-lines on how the desired action may be performed without breaking the law.. But just as rules conferring powers would have no point unless somewhere down the line a person could by their aid bring about some alteration on the bearing on someone of some rule imposing a duty. It is indeed a meta-rule. Social circumstances provide the background in which the rule of recognition. whether of law or of morality or of social custom.
and that the scorer is trying to do the same thing as the players are. they no longer fulfil their role and so cease being the rules they were. system. and on the whole succeeding.. but must always be at least in part. the game has been changed. but only as a social phenomenon that arises when men. They thus cannot provide completely adequate criteria of legal validity. The concepts of law. Provided.rules. are not. pp. in regulating social behaviour. but a potentially disastrous analogue of scorer’s discretion. We may. italics Lucas’. But once the tacit understandings which direct the rulers’ activities on lines congruous to the aims of ordinary citizens are dissolved. and becomes what Hart illuminatingly describes as the game of ‘scorer’s discretion’. meta-rules. are ‘in some sense parasitic upon’ primary rules and cannot stand on their own. who are rational but not very rational. in contrast to a pre-legal. pp. for whereas rules imposing duties and rules conferring powers may be explicitly formulated in words. It can be elucidated. But if we divorce the metarules from the substantive rules of social intercourse. Id. live their lives together. as the ordinary members of society are. 92-93. and usually become more fully formulated with the passage of time and the growing sophistication of a legal system. Else the game is different. due to the social background renders. but implies that the center of gravity of a legal system is not in its meta-rules. for good reasons. Exactly similar arguments apply to the rule of recognition. but this meta-rule operates. and look to the civil authorities only to enforce them if need be and to adjudicate the relatively rare cases of dispute. and we are no longer faced with a legal system. we would not give an entirely formal definition of law. Hart makes the point very clear by his analogy with a scorer in a game. and the sole requirement for legal validity is that it should conform to the rule of recognition. only against the background that scoring is something which players by and large do themselves.. and especially the rule of recognition.”39 Hence. and cannot be. its various meta-rules will serve a social function and be generally accepted. that the developed legal system satisfies their requirements. have a scorer and may have the meta-rule that his decision is final. therefore. “The distinction between rules and meta-rules is a distinction between what is primary and what is secondary. even if we wanted to. since the crucial question—whether the meta-rules are operated in such a way as to produce the results that are by and large rationally acceptable—is one that no formal decision-procedure can always settle. however useful they may be in remedying the inadequacies of a prelegal regime. If we concern ourselves only with formal criteria of legal validity. cannot be given too tidy a definition. So long as rulers are trying to do the same thing. there is no compelling necessity that a rule of recognition be formally and explicitly laid out in as precise and sophisticated a manner which Hart expects.”40 39 40 Id. It makes sense only as a development of a pre-legal regime in which most people know most of the time what their legal rights and duties are. we shall abstract too much. 97-98. and presuppose that the substantive law is in line with social customs and moral principles. It serves to characterize what Hart counts as a legal. and see a developed legal system as an improved version of a pre-legal regime. and moral but not very moral. but only provided. but in the primary rules of the pre-legal system and the social mores it embodies. If we concentrate too much on formal meta-rules. implicit in a diffused recognition of what is rationally acceptable. fully formulated. as we shall fail to see that these arise out of the law’s fulfilling a social function. and can operate. 98 . Moreover.
or figured in the argument. If it no longer seemed unfair to allow people to profit from their wrongs. These special rules can be identified and distinguished by specific criteria. When they decline. But this test of pedigree will not work for the Riggs and Henningsen principles. it hardly makes sense to speak of principles like these as being ‘overruled’ or ‘repealed’. 14-45.. 17. These moral principles cannot be identified by means of tests of pedigree. these principles would no longer play much of a role in new cases.44 wherein appeal to moral principles was used in a material way to justify the decision in the case. These tests of pedigree can be used to distinguish valid legal rules from spurious legal rules (rules which lawyers and litigants wrongly argue are rules of law) and also from other sorts of social rules (generally lumped together as ‘moral rules’) that the community follows but does not enforce through public power. 42 Id. 358. or in the committee reports or other legislative documents that accompanied it). in the form of statutory enactments. and thus established them as precedents for the future. only the first of which is to be examined. we would probably fail to make out our case. Cambridge: Harvard University Press.”42 Dworkin engaged in a long argument in an attempt to disprove this tenet. we would mention any prior case in which the principle was cited. 99 . Inc. some legal standards are part of law because of the role they play in judicial decision-making in a manner in which they are capture-free by the rule of recognition. (Indeed. the more weight we could claim for the principle. The first tenet states: “The law of a community is a set of special rules used by the community directly or indirectly for the purpose of determining which behavior will be punished or coerced by public power. In other words.. The Rule of Recognition Dworkin. Bloomfield Motors. they are eroded. He then argued that this was not uncommon to judicial decision-making. in “The Model of Rules I. 44 32 N. “Most rules of law. Palmer43 and Henningsen v. 22 N. Some were created by a legislature. p. 1978. The origin of these as legal principles lies not in a particular decision of some legislature or court.E. are valid because some competent institution enacted them.J. not torpedoed. Their continued power depends upon this sense of appropriateness being sustained. and the more support we found.Y. 161 A. even if they had never been overruled or repealed. if we were challenged to back up our claim that some principle is a principle of law. or fair to place special burdens upon oligopolies that manufacture potentially dangerous machines.” Taking Rights Seriously.” 41 characterized Hart’s positivism in terms of three tenets. 188 (1889).B. Unless we could find some institutional support. 2d 69 (1960). they defy the rules of recognition. pp.) True. but in a sense of appropriateness developed in the profession and the public over time. “The Model of Rules I. He provided examples of judicial opinions. 43 115 N. Others were created by judges who formulated them to decide particular cases. according to Hart. We would also mention any statute that seemed to exemplify that principle (even better if the principle was cited in the preamble of the statute. 41 Ronald Dworkin. as such. by tests having to do not with their content but with their pedigree or the manner in which they were adopted or developed. 506. Riggs v.
or by a particular position on the proper division of authority between national and local institutions. principles rather hang together than link together. they do not have a simple or direct enough connection with these acts to frame the connection in terms of criteria specified by some ultimate master rule of recognition. or the particular technique of statutory interpretation. even a complex one. No tests of pedigree. we should certainly cite the other general principles that we believe support that practice. n. Nor is this path of support a one-way street leading to some ultimate principle resting on acceptance alone.’ Moreover. 45 Dworkin. So even though principles draw support from the official acts of legal institutions.) If we are asked (as we might well be) to defend the particular doctrine of precedent. or federation might be challenged too. nor can his concept of customary law. supra. the relation of all these to contemporary moral practices. 40-41. developing. that we used in this argument. that the use we make of earlier cases and statutes is supported by a particular analysis of the principles of democratic theory. 100 . . statutory interpretation. . and interacting standards (themselves principles rather than rules) about institutional responsibility. the persuasive force of various sorts of precedent. appropriate for rules. but in terms of each other and in terms of the implications of trends of judicial and legislative decisions. and this introduces a note of validity into the chord of acceptance. itself an exception to the first tenet of positivism. be made to serve without abandoning the tenet altogether.”45 Dworkin concluded: “So we cannot adapt Hart’s version of positivism by modifying his rule of recognition to embrace principles. One more possibility must be considered. and if we could the result would bear little relation to Hart’s picture of a rule of recognition.Yet we could not devise any formula for testing how much and what kind of institutional support is necessary to make a principle a legal principle.. but this speaks as much to the principle’s acceptance as its validity. and hosts of other such standards. and if they were we should argue for them. We could not bolt all of these together into a single ‘rule’. (It seems odd to speak of a principle as being valid at all. not only in terms of practice. Our principles of legislation. can be formulated. We argue for a particular principle by grappling with what a whole of shifting. At this level of abstraction. we could cite the acts of courts and legislatures that exemplify it. even though this last would involve appealing to those same doctrines of interpretation we justified through the principles we are now trying to support. pp. the techniques we apply in arguing for another principle do not stand (as Hart’s rule of recognition is designed to) on an entirely different level from the principles they support. but inconsistent with a principle’s dimension of weight. 35. for example. relating principles to acts of legislation. perhaps because validity is an all-or-nothing concept. or something else of that sort. Hart’s sharp distinction between acceptance and validity does not hold. We might argue. which is the picture of a fairly stable master rule specifying ‘some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule. precedent. still less to fix its weight at a particular order of magnitude. If we are arguing for the principle that a man should not profit from his own wrong. in other words. democracy.
that the law of a community is distinguished from other social standards by some test in the form of a master rule. 43-44. their weight is all important. are not appealing to legal standards. and distinguishes them from the principles they do not. Ronald Dworkin. “The Model of Rules II. I conclude that if we treat principles as law we must reject the positivists’ first tenet. in arguing and deciding lawsuits. together with appropriate assignments of weight. Dworkin summarizes his argument against the existence of a rule of recognition in another article: “I might summarize the argument I made in this way. so can principles. appeals not only to such black-letter rules. instead. and they shift and change so fast that the start of our list would be obsolete before we reached the middle. 101 . why not say that principles are ultimate.” Taking Rights Seriously. He might try to show that judges. pp. This solution has the attraction of paradox. they are numberless. can be enacted or repealed by legislatures and administrative authorities. contrary to my doubts. Thus. Or he might try to show that. we tried actually to list all the principles in force we would fail. I argued that neither strategy could succeed. and form the rule of recognition of our law? The answer to the general question ‘What is the valid law in an American jurisdiction?’ would then require us to state all the principles (as well as ultimate constitutional rules) in force in that jurisdiction at the time. Cambridge: Harvard University Press. Like customary law. I said that the thesis that there exists some commonly recognized test for law is plausible if we look only at simple legal rules of the sort that appear in statutes or are set out in bold type in textbooks. 46. But lawyers and judges. Many legal systems recognize that both rules and principles can be made into law or lose their status through precedent. If no rule of recognition can provide a test for identifying principles. They are controversial. Principles are not made into law by a single judgment. “Legal principles. Joseph Raz took up the cudgels for the positivists in defending Hart against Dworkin’s attack. A positivist might then regard the complete set of these standards as the rule of recognition of the jurisdiction. If we simply designate our rule of recognition by the phrase ‘the complete set of principles in force’. some commonly-recognized test always does identify the principles judges count as law. but also to other sorts of standards that I called legal principles. like.”46 Prof. This fact faces the positivist with the following difficult choice. p. Even if we succeeded. but only exercising their discretion. if rules can be captured by some sort of master test. If. Rules and principles differ in this respect. He replied that principles become part of the law in roughly the same way that rules do. they evolve rather like a custom and are binding only if they have considerable authoritative support in a line of judgments. They can also become legally binding through establishment by the courts.”47 Prof. like other laws. judicially adopted principles need not be formulated very precisely in the judgments which count as authority for their existence. we would not have a key for law because there would be nothing left for our key to unlock.. we achieve only the tautology that law is law. All 46 47 Id. 1978. the principle that no man may profit from his own wrong. when they appeal to principles of this sort. but of course it is an unconditional surrender. for example. A court can establish a new rule in a single judgment which becomes a precedent.however.
102 .” Ronald Dworkin and Contemporary Jurisprudence. “‘Hart’s sharp distinction between acceptance and validity. this would have been a valid criticism. Since it is itself a judicial custom it cannot confer any special status on other judicial customs. which determines under what conditions social customs are binding as law.”48 Dworkin formulates two arguments against the existence of a rule or recognition or a master test in law. the more weight we could find from the principle. Some countries. an important point which does necessitate a modification of Hart’s criterion of identity.’ the first argument runs.’ The concept of validity is said to be inconsistent with a principle’s dimension of weight on the ground that one establishes a principle’s validity by showing that it has ‘institutional support’ but the amount of support a principle enjoys determines its weight and is a matter of degree: ‘[T]he more support we found. They are part of the law because they are accepted by the courts. It is binding because of the doctrine of precedent which is part of our rule of recognition. but this speaks as much to the principle’s acceptance as its validity. however. “Legal Principles and the Limits of Law. It does not have to wait until it is accepted in a series of cases to be binding. do not recognize custom as a source of law at all. not because they are valid according to the rule of recognition. p. that they were in fact a reason operating in a series of cases. He claims that if the master rule says merely that whatever other rules the community accepts are legally binding. perhaps because validity is an all-or-nothing concept. however. for example. explain in the same way the legal status of judicial customs. They may. that some legal principles are law because they are accepted by the judiciary. differs in this respect from the evolution of principles by the courts. though. Principles evolved by the courts become binding by becoming a judicial custom. Had all social customs in all countries been legally binding. by Marshall Cohen. If we are arguing for the principle that a man should not profit from his own wrong. Hart’s criterion of identity must be modified. These tests. ed. but it need not be and the two notions are not logically related. A legal system consists not only of one customary rule of the law-enforcing agencies and all the laws 48 Joseph Raz. But here again Professor Dworkin claims too much. as some of Professor Dworkin’s own examples show. (It seems odd to speak of a principle as being valid at all. New Jersey: Rowman and Allanheld. It cannot. appropriate for rules. Judicial rule-making. does serve to explain the legal status of general community customs. but have little weight. are laid down by the rule of recognition. It is. therefore. A rule becomes binding by being laid down in one case as a precedent. Legal principles may be valid in precisely the same way that rules are. This is how Raz describes and responds to the first argument. but inconsistent with a principle’s dimension of weight. The degree of support may sometimes be evidence for a principle’s weight.that has to be shown is that they underlie a series of courts’ decisions. The rule of recognition. A principle might have been referred to frequently by the courts as binding. then it fails to act as an identifying criterion distinguishing between law and social norms. we could cite the acts of courts and legislatures that exemplify it.’ But this is surely mistaken. if they are not set out in a statute or some other law. These legal systems which do regard customs as legally binding do so only if they pass certain tests. as I indicated above. be enacted in a constitution or in a statute. however. 77. ‘does not hold. It is true.
of those standards which the courts are bound to recognize. He denies. . which rejects a distinction because it admits the existence of borderline cases. but it preserves the fundamental point underlying Hart’s criterion and shared by many: namely. Id.. Thus the acceptability of the thesis of the limits of law depends on our ability to explain the concept of a judicial custom. we would mention any prior cases in which that principle was cited. Once we have it we will know what judicial custom is and will have a complete criterion of identity. For laws are binding on the courts either because judicial customs make their recognition obligatory or because they are themselves judicial customs. Yet we could not devise any formulate for testing how much and what kind of institutional support is necessary to make a principle a legal principle.’ In this passage Professor Dworkin is rejecting not merely Hart’s version of the thesis of the limits of law but all versions of the thesis. 79-80. He agrees that if legal and nonlegal standards can be distinguished. but there is no reason to suppose that the concept of a customary norm defies analysis. ‘if we were challenged to back our claim that some principle is a principle of law. ‘True. the possibility of a general explanation of what counts as adequate institutional support. pp. . This is an important modification. 80-81. The importance of this feature of law is made manifest by distinguishing between legal and nonlegal standards according to whether or not the courts have an obligation to apply them. . Hart has provided such an explanation. however. But Dworkin’s is a very weak argument. or figured in the argument.’ he says. And it is part of the function of adjudicative 49 50 Id. . 103 . but of all the customary rules and principles of the lawenforcing agencies and all the laws recognized by them. as I have suggested. this could only be done by relying on the fact that only legal standards have adequate institutional support in the practice of the courts. It follows that it is impossible to provide a general account of the difference between legal and nonlegal standards and the thesis of the limits of law must be abandoned. the law has sources. we would probably fail to make out our case . “Professor Dworkin has a second argument disputing the possibility of formulating an adequate criterion of identity. that law is an institutionalized normative system and that the fact that the enforcement of its standards is a duty of special law-enforcing agencies is one important feature which distinguishes it from many other normative systems.”49 Professor Dworkin’s second argument is repeated and responded to by Raz in this manner. Borderline cases will remain. It is true that an analysis of the concept does not give us a decision procedure determining for every principle or rule whether or not it has sufficient support to be regarded as a judicial custom. But judicial customs are but a special case of social customs..”50 To put the same point in another way. That the law has sources is a result of its social and institutional character. . we must agree with Professor Dworkin that we need a general explanation of what counts as adequate institutional support. What we need is an adequate explanation of the concept of a customary norm. No doubt it is possible to improve on it.recognized by it. they must remain for customary norms evolve gradually. Unless we could find some such institutional support. It is a truism that law tells men how to behave or consists of standards that guide their actions. either because they are themselves judicial custom or because judicial customs make their application obligatory. pp. What is the force of the argument? If a legal system consists. .
the courts know where to look to find law or know how to identify the sources from which the legal standards applicable to the case are derived. Hence. pp. about which other kinds of propositions. in the empirical way. are unable to account for theoretical disagreement in law. From the internal perspective on the other hand. Dworkin insists that semantic theories. make a particular proposition of law true. In more sophisticated ones where greater emphasis is placed on spelling out these standards for clearer and more effective guidance.. that the speed limit is 55 in California if the official California statute book contains a law to that effect. London: Fontana Press. when true. but disagree about what the law of compensation actually is because they disagree about whether statute books and judicial decisions exhaust the pertinent grounds of law. the courts turn to the pronouncements of law-making and law-applying institutions.52 one which may be used to identify by means of social fact the sources with which the law's existence is determined and content identified. 104 . An outsider looking in at the court's behavior can observe a judicial practice or custom. This is as true for primitive societies as well as for sophisticated ones. 4. 79-88. by its insistence on shared criteria of meaning. We might call this an empirical disagreement about law. 92 53 Ronald Dworkin. for his guidance. the attitude of the courts that the practice ought to be complied with can be discerned. Or they might disagree about the grounds of law. about what the statutes and past judicial decisions have to say about compensation for fellow-servant injuries. but disagree about whether that is the speed limit because they disagree about whether. The sources are identified in terms of the practice of the courts. The semantic sting is a knockdown argument against all legal methodologies which avail of semantic theories of law. It challenges the very methodology of legal positivism and claims that it falls prey to the semantic sting. In primitive societies. like themselves. as well as for determining the law's existence and for identifying the law's content. Dworkin first introduced certain terminology in order to construct his argument. however primitive or sophisticated the law (so long as society is governed by it). They might agree.”53 He then distinguished between empirical and theoretical disagreements about law. 54 Id. the courts in resolving a dispute may conclude that these standards are to be found in custom or a shared morality. From an external perspective therefore. Lawyers and judges might agree. 51 Some sort of rule of recognition can be formulated. The Semantic Sting The second criticism of Dworkin is more general in character. They might agree about the grounds of law—about when the truth or falsity of other. The Concept of Law.”54 51 52 See Hart. He initially defined a proposition of law as “all the various statements and claims people make about what the law allows or prohibits or entitles them to have. the book does contain such a law. p. We might call that a ‘theoretical’ disagreement about law. in fact. Law’s Empire. Ibid. The ingredients that transform a practice into a binding rule are thus in place. 4-5..institutions to pick out these standards in applying the law. for example. “Now we can distinguish two ways in which lawyers and judges might agree about the truth of a proposition of law. more familiar propositions makes a particular proposition of law true or false—but disagree about whether those grounds are in fact satisfied in a particular case. a rule or rules can be formulated describing it. C.
I shall call this the ‘plain fact’ view of the grounds of law. If some body of that sort has decided that workmen can recover compensation for injuries by fellow workmen. like legislatures and city councils and courts. So questions of law can always be answered by looking in the books where the records of institutional decisions are kept. incidentally. these positivists subscribed to a semantic theory. unless some of them have made an empirical mistake about what actually was decided in the past. p. presumably positivists. p. and that any lawyer who rejected or challenged those criteria would be speaking self-contradictory nonsense. to these counter-examples was to claim that “theoretical disagreement about the grounds of law must be a pretense because the very meaning of the word ‘law’ makes law depend on specific criteria. 58 Id. and what the law is in no way depends on what it should be.”55 Dworkin then went on to provide counter-examples to this view in the form of actual judicial cases which tended to show that the arguments in these cases seemed to be about law and not about morality or fidelity or repair. 7. For we all follow rules given by our common language of which we are fully aware. 105 . According to him. 37. These theories disagree about which criteria lawyers do share and which grounds these criteria do stipulate. Id. 33. Of course it takes special training to know where to look and how to understand the arcane vocabulary in which the decisions are written.”59 55 56 Id. they say.. On this view lawyers and judges systematically connive to keep the truth from the people so as not to disillusion them or arouse their ignorant anger. ‘Law exists as a plain fact. here is a preliminary statement of its main claims. It does not follow that all lawyers are aware of these rules in the sense of being able to state them in some crisp and comprehensive form. Our rules for using ‘law’ tie law to plain historical fact. they suppose that lawyers actually agree about the grounds of law. 57 Id.”58 Dworkin then went on to argue that the ‘pretense’ or ‘fingers-crossed’ argument does not hold water. in other words. and it therefore cannot be controversial among them whether the law allows compensation for fellow-servant injuries. “Semantic theories suppose that lawyers and judges use mainly the same criteria (though these are hidden and unrecognized) in deciding when propositions of law are true or false. p. then that is law.. that lawyers and judges all actually agree about the grounds of law. he maintained that legal positivists advocated or subscribed to a plain-fact view of law. The law is only a matter of what legal institutions. “(Legal philosophers) say that theoretical disagreement is an illusion. 31.”56 These specific criteria are in the form of shared rules: “We follow shared rules. they are really disagreeing about what it should be.. which. p. The pretense argument goes like this: “(J)udges pretend to be disagreeing about what the law is because the public believes there is always law and that judges should always follow it. in using any word: these rules set out criteria that supply the word’s meaning. The layman does not have this training or vocabulary. Their disagreement is really over issues of morality and fidelity. Why then do lawyers and judges sometimes appear to be having a theoretical disagreement about the law? Because when they appear to be disagreeing in the theoretical way about what the law is. he also provided a definition for. but lawyers do. for example. 59 Id.Next. the surprising response of some legal philosophers. have decided in the past..”57 In other words.
pp. 39-40. why they disagree in hard cases like our sample cases. then why has this view not become part of our popular political culture long ago? And if it has not—if most people still think there is always law for judges to follow—why should the profession fear to correct their error in the interests of a more honest judicial practice? In any case. how can the pretense work? Would it not be easy for the disappointed party to demonstrate that there really was no law according to the grounds everyone knows are the right grounds? And if the pretense is so easily exposed.”62 The sophisticated positivist legal defense fails too. People do not all follow exactly the same rule. 62 Id. Each uses a slightly different version of the main rule.. It claims that lawyers and judges all follow what is mainly the same rule for using ‘law’ and therefore all agree about. For sensible people do not quarrel over whether Buckingham Palace is really a house. why bother with the charade? Nor is there any evidence in our sample cases that any of the lawyers or judges actually believed what this defense attributes to them. Nevertheless there are borderline cases. however. Id. In this respect. There is no argument for that view of the matter except the question-begging argument that if the plain-fact thesis is sound they just must be pretending. “The new story is in one way like the fingers-crossed story.Then he proceeds with its refutation.. This new argument stresses the importance of distinguishing between standard or core uses of the word ‘law’ and borderline or penumbral uses of the word. 37-38. they understand at once that this is not a genuine issue but only a matter of how one chooses to use a word 60 61 Id. some would say that Buckingham Palace is a house while others would not. If “lawyers all agree there is no decisive law in cases like our sample cases. according to the present argument. Someone who denies that the detached one-family residences on ordinary suburban streets are houses just does not understand the English language. which concedes that lawyers and judges in our sample cases thought they were disagreeing about the law but argues that for a somewhat different reason this self-description should not be taken at face value. So lawyers may use the word ‘law’ differently in marginal cases when some but not all of the grounds specified in the main rule are satisfied. according to Dworkin. 106 . This explains. for example. they permit penumbral or borderline cases in which people speak somewhat differently from one another. Many of their arguments would be entirely inappropriate as arguments for either the repair or the improvement of law.. the argument continues. p. however: it leaves wholly unexplained why the legal profession should have acted for so long in the way the story claims it has. We all agree about the standard meaning of ‘house.”61 The positivists have a stronger. the legal speed limit in California and the basic rate of tax in Britain. a more sophisticated defense of positivism. more sophisticated argument: “There is.’ for example. But because rules for using words are not precise and exact. pp. and the differences become manifest in these special cases. they make sense only as arguments about what judges must do in virtue of their responsibility to enforce the law as it is.”60 He then concludes: “In fact there is no positive evidence of any kind that when lawyers and judges seem to be disagreeing about the law they are really keeping their fingers crossed. our use of ‘law’ is no different from our use of many other words we find unproblematical. 39.
McLoughlin should have her damages. moreover.. People sometimes do speak at cross-purposes in the way the borderline defense describes. Sometimes. because it ignores an important distinction between two kinds of disagreements. impose the rights and obligations everyone agrees they do.whose meaning is not fixed at its boundaries. they argue about the appropriateness of some word or description because they disagree about the correct tests for using the word or phrase on any occasion. 40-41.”64 Dworkin then summarizes his criticism of positivism and semantic theories of law. But whatever you think.. They disagreed about what makes a proposition of law true not just at the margin but in the core as well. Our sample cases were understood by those who argued about them in courtrooms and classrooms and law reviews as pivotal cases testing fundamental principles.’ why should lawyers argue for so long about whether the law really gives the secretary of the interior power to stop an almost finished dam to save a small fish. not only about whether Mrs. “You might think that the second argument I just described is silly. italics Dworkin’s. 107 . The ‘sophisticated’ defense of positivism misunderstands judicial practice in just that way. pp. It would be a serious misunderstanding to conflate the two or to say that one is only a special case of the other. arguments of that character occur. Their disagreements about legislation and precedent were fundamental. but about how and why past judicial decisions change the law of the land. The various judges and lawyers who argued our sample cases did not think they were defending marginal or borderline claims. but about why any legislative act. They agree about the correct tests for applying some word in what they consider normal cases but use the word somewhat differently in what they all recognize to be marginal cases. or whether the law forbids racially segregated schools? How could they think they had arguments for the essentially arbitrary decision to use the word one way rather than another? How could they think that important decisions about the use of state power should turn on a quibble? It does not help to say that lawyers and judges are able to deceive themselves because they are actually arguing about a different issue. the distinction between borderline cases and testing or pivotal cases. even traffic codes and rates of taxation. however. a corruption of scholarship. The borderline defense is worse than insulting. The crossed-fingers defense shows judges as well-meaning liars. If ‘law’ is really like ‘house. pp. not as borderline cases calling for some more or less arbitrary line to be drawn. So the new defense of positivism is a more radical critique of professional practice than it might seem. and they are different from arguments of the first kind.”63 It is an argument of the second type which lawyers and judges engage in in actual judicial cases. the borderlinecase defense shows them as simpletons instead. their arguments showed that they disagreed not only about whether Elmer should have his inheritance. like the case of a palace. 42-43. the political issue whether the secretary should have that power or whether states should be forbidden to segregate their schools. We have already noticed that many of the arguments judges make to support their controversial claims of law are not appropriate to those directly political issues. 63 64 Id. Id.
108 . “I shall call the argument I have just described. Dworkin conveniently neglects conceptual and other theories. So the project of the semantic theories. We have no choice but to confront that argument. Indeed Dworkin appears to suggest that there are only two types of jurisprudential theories. Id.”66 To summarize Dworkin’s point. the semantic sting. Semantic theories are committed to the view that law can be characterized and the truth of legal propositions determined in terms of shared linguistic criteria. So our legal philosophers try to save what they can. The logic that wreaks this havoc is the logic just described. there being agreement at the core. or they insist that disagreement exists only in the borderline cases of legal concepts. his conclusions are based on his criticism of semantic theories of law. whatever disagreement there is being one outside law. like semantic theories. Since semantic theories are not viable. p. None of the jurisprudential theories of note are semantic in the way described. these shared linguistic criteria being adequate to determine the truth of legal propositions.”65 This.“If legal argument is mainly or even partly about pivotal cases. 43-44. . since they are preoccupied with ordinary language and engage in linguistic analysis. Dworkin calls. . purely verbal or linguistic. and indeed on other jurisprudential theories. which is a jurisprudential theory based on adjudication. which has caused such great mischief in legal philosophy. But the point of the 65 66 Id. so the next stage of our project must be philosophical as well. They grasp at straws: they say that judges in hard cases are only pretending to disagree about what the law is. . the argument that unless lawyers and judges share factual criteria about the grounds of law there can be no significant thought or debate about what the law is. They think that they must otherwise settle into some form of nihilism about law. or that hard cases are only borderline disputes at the margin of what is clear and shared. Dworkin's error therefore lies in assuming that since jurisprudential theories attempt to characterize or define law. Hence Dworkin's argument may be valid against semantic theories. then only interpretive theories remain. 45. the semantic sting. Their arguments would be mainly or partly about which criteria they should use. which disagreement is to be resolved purely by verbal convention. The more viable jurisprudential theories. a matter merely of reporting the shared linguistic criteria people employ in using a word or of extending this shared or uncontroversial meaning to account for borderline cases. It is a philosophical argument. the project of digging out shared rules from a careful study of what lawyers say and do. . This is a false dichotomy. This argument appears to have greater force when applied to conceptual theories. then lawyers cannot all be using the same factual criteria for deciding when propositions of law are true or false. . by choosing to extend the concept one way or another.. they all fall victim to the 'semantic sting'. would be doomed to fail. As such. . Either they pretend that no disagreement whatsoever exists. since they are unable to account for theoretical disagreements involved in judging the truth or falsity of individual propositions of law. semantic theories and his recommended interpretive theories. The semantic sting has no effect on them. are conceptual and not semantic. but not all jurisprudential theories are so crude.. pp.. . of which the jurisprudential theory of this thesis is one. The semantic sting has limited impact. or he falsely categorizes all these viable jurisprudential theories as semantic. they must be.
in the sense of a rule by reference to which the correctness of the use of a word can be tested. The weak social thesis subscribes only to the first two. which is to arrive at a better understanding of the phenomena under investigation. their actual doctrines rest on efficacy and institutionality as the only conditions concerning the social foundation of law."69 Conceptual theories therefore are not linguistic. the world.”70 To elaborate. those with respect to which the law is unsettled) be determined 67 68 H. For the problems are deep and substantial. coercion. 14.e. Raz maintains that the tests for the identity and existence of a legal system contain three basic elements: efficacy. Indeed. 1979. 69 Dworkin. which is Raz's view.conceptual theorist's open concern with language and of his search for some sort of definition is not purely linguistic. it (was) 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. 65-68. the point being "a sharpened awareness of words to sharpen our perception of phenomena. 41-42. pp. even when ordinary language provides uncontroversial shared truths about the phenomena being investigated. Inclusive Positivism The third criticism against Hart is an internal one. or even our thoughts. It does not disappear with improved reporting on actual usage. Raz. 70 Joseph Raz. how we understand the world. 109 . and what lies behind the concepts. Hart. p. entitled "Coherence and Law". Hence they share with interpretive theories an appreciation of the same problem. pp. Let the combination of these two conditions be called the weak social thesis. and morality. For ordinary language itself may be vague. “Legal Positivism and the Sources of Law.67 or to understand our self-understanding of the world. but our concepts.” The Authority of Law. on the other hand. A. which fails to comply with the basic positivist insight that what is law or not law is purely a matter of social fact and not of moral considerations. The Concept of Law. as types of social phenomena. which is more precisely defined as follows: “A jurisprudential theory is acceptable only if its tests for identifying the content of the law and determining its existence depend exclusively on facts of human behaviour capable of being described in value-neutral terms without resort to moral argument. supra. For the key to understanding the world lies in understanding our own concepts. Suppose that the law requires that unregulated disputes (i. advocates the strong social thesis. institutional character. L.. Oxford: Clarendon Press. and in the inadequacy of purely linguistic enterprises to provide this understanding. D. It is easy to show that the weak and strong theses are not equivalent. While their general terms suggest an endorsement of the strong social thesis. while the strong social thesis advocates all three. the puzzlement remains. Professor Raz argues that Hart subscribes to a version of positivism which endorses a weak social thesis. This is precisely Hart's point in his introduction to The Concept of Law. but disagree in the solution and the method for arriving at the solution.68 Hence it is not words or language per se." an insight of Austin which Hart openly endorsed. This was made clear by Raz in a set of lectures he delivered in the Michaelmas Term of 1992-93. ambiguous or inconsistent. The book's purpose was "not to provide a definition of law. ordinary language's verdict on the use of our words cannot be the be-all and the end-all of the matter. “Most positivists are ambiguous concerning one interesting point. or by an agreement on a set of common characteristics so as to categorize borderline cases. and sources. Moreover. which conceptual theories are interested in.
46-47. “The Model of Rules I. when I discuss more fully the legal theory of Professor Joseph Raz. the determination of what is the law in certain cases turns on moral considerations. This contention runs directly counter to the strong thesis. 1986.”71 Raz’ proceeded to show the inadequacy or undesirability of the weak social thesis under positivist principles. pp. Cambridge: Harvard University Press.”72 Unfortunately. To conform to the strong thesis we will have to say that while the rule referring to morality is indeed law (it is determined by its sources) the morality to which it refers is not thereby incorporated into law. Brian. To Raz’s theory therefore. 1-3. builds into law the conditions of efficacy and institutionality. ----------Law’s Empire. the weak thesis. but also with— (b) In all legal systems the identification of some laws turns on moral argument. Cambridge: Harvard University Press. 45-46. 71 72 Id. London: Fontana Press. The rule is analogous to a ‘conflict of law’ rule imposing a duty to apply a foreign system which remains independent of and outside the municipal law. The two theses are logically independent. It is compatible with— (a) Sometimes the identification of some laws turns on moral argument. but not the strong one. 1977.” Taking Rights Seriously. Chs.. On the other hand. London: Sweet and Maxwell. since one has to resort to moral arguments to identify the law. this debate internal to positivism must await the next chapter. such as considerations of justice or moral considerations fundamentally at odds with social morality). 0–0–0–0–0 REFERENCES Bix. The first view is on the borderline of positivism and may or may not be thought consistent with it. 110 . ----------“The Model of Rules II. Id..” Taking Rights Seriously. Ronald. Jurisprudence: Theory and Context. 1977. His argument proceeds as follows: “The difference between the weak social thesis and the strong social thesis is that the strong one insists. the second view asserts a conceptual necessity of testing law by moral argument and is clearly on the natural law side of the historical positivist/natural law divide. 2003 Dworkin. I now turn.on the basis of moral considerations (or a certain subclass of them. pp. whereas the weak one does not. that the existence and content of every law is fully determined by social sources. If it is accepted. Suppose further that it is argued that in virtue of this law moral considerations have become part of the law of the land (and hence the law is never unsettled unless morality is). But whereas the first view depends on the contingent existence of source-based law making moral considerations of validity in certain cases (as in the example above). The weak thesis though true is insufficient to characterize legal positivism.
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