The Concept of Law and 'The Concept of Law'

Author(s): Neil MacCormick

Source: Oxford Journal of Legal Studies , Spring, 1994, Vol. 14, No. 1 (Spring, 1994), pp.
1-23
Published by: Oxford University Press

Stable URL: https://www.jstor.org/stable/764760

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 The Concept of Law and 'The
Concept of Law't
NEIL MAcCORMICK*

This lecture commemorates a great jurist and philosopher.

recent sad death, many have paid just and eloquent tribut
scholar, as teacher, and as human being. His work, and his a
to life, were a source of guidance and inspiration to many.
debt to him is a great one, and I owe much to his personal kindness and
professional support as well. I am too much honoured in being invited to give
this year's Hart lecture. Against original hope and design, this has turned into a
lecture in memoriam Herbert Hart; as such, it can at best only echo his own
splendid qualities. Perhaps its title 'The Concept of Law and The Concept of
Law' has, appropriately, the ring of an echo in it.
The starting point for discussion has to be in one of the focal ideas of Hart's
legal positivism, that of the conceptual distinction between law and morality.
Three salient points of distinction are, for me, that law is institutional, authorita-
tive, and heteronomous, contrasting with the personal and controversial, the
discursive, and the autonomous character essential to morality. Having estab-
lished these contrasts in the first section, I proceed in sections two, three
and four to discuss respectively the institutional, the authoritative, and the
heteronomous character of law. Finally, bearing in mind that law and morality
are both normative, both action-guiding for rational agents, I mitigate the
sharpness of the earlier-drawn contrast in a consideration of practical reason,
law, and morality in relation to law.

t This is the revised text of the Hart Lecture, delivered in Oxford University on 11 May 1993. I am very grateful
to Adrian Zuckerman for his kindness and help in arranging this lecture, and for the invitation by himself and the
other trustees to present this lecture. I received great help in preparing it from Zenon Bankowski (cf his 'Don't
Think about it: Legalism and Legality' in M. Karlsson et al (ed) Law, Justice and the State, Rechtstheorie, Beiheft
15, 1993), from discussion with Michael Menlowe, and from reading Michael Roumeliotis' Linguistic Jurispru-
dence (Edinburgh University, PhD thesis, 1993), from seeing and discussing Tom Campbell's typescript of his
forthcoming Legal Theory of Ethical Positivism (Dartmouth Publishing Co, Aldershot, 1994, forthcoming), and
from discussions with Hamish Ross on Hart's legal theory and the sociology of law during his period of work in
Edinburgh Law Faculty supported by the Lindsay Bequest Fund. I received valuable comments and criticisms at
the seminar following the Hart Lecture, from John Finnis, Carl Wellman, Nicola Lacey, Tony Honori and others,
including students, whose names now escape me. All these contacts have certainly improved my initial thoughts and
earlier typescripts, but the remaining defects are imputable to myself alone.
* University of Edinburgh.

O Oxford University Press 1994 Oxford Journal of Legal Studies Vol 14, No 1

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 2 Oxford Journal of Legal Studies VOL. 14

1 Law and Morality: A Conceptual Dis

Recently, Anthony Bland, a victim of the Hillsboroug
after several years in a persistent vegetative state. He
discontinuance of the nourishment through tubes whic
him. Given his long-enduring persistent vegetative st
state was irreversible owing to the degeneration of br
medical opinion was that continued medical intervent
Bland's life was not in his best interest. On these two
Lords held that cessation of feeding and of treatment with
and laid it down that in future like cases, the same test sh
to the confirmation by the High Court in each case of
discontinuance in the light of all prevailing circumstan
Recently also, men have been convicted of and imprisoned
on each other of violent and injurious acts; these were h
in law, even though the acts had taken place on private pre
had desired and consented to hurt on their genitals an
sado-masochistic pleasure. The House of Lords has pron
holding that consent is a defence to a charge of assault onl
cases such as necessary surgery or regulated sports.2 So the
case are to be treated as serious crimes, involving grievous bodily harm.
Substantial prison terms are being served by the persons involved.
In the first case, the judicial ruling was challenged by a priest who tried to raise
a private prosecution after Tony Bland's death. In the second, controversy also
continues, as the Lords' ruling is challenged at Strasbourg under the European
Human Rights Convention. In this case or some other soon, the question will be
raised at the European Court of Justice in Luxembourg whether the human
rights convention is now incorporated in European Union Law through the
Maastricht treaty, hence operative in the United Kingdom as domestic law,
hence requiring and enabling British judges to apply it directly in domestic legal
disputes. Nevertheless, for the time being, the House of Lords decisions stand as
a matter of UK law, determining authoritatively and clearly the English law on
the questions raised.
In all sorts of ways, as we see, issues of life and death can give rise to
controversy. Abortion is another perennial example. In 1938, the surgeon Alec
Bourne performed an abortion on a girl of fifteen impregnated by violent rape,
and then reported himself to the police. He was prosecuted, but the judge
directed the jury to acquit if the Crown had not proved beyond reasonable doubt
that the surgeon had not acted in good faith with a view to protecting the life,
Airedale NHS Trust v Bland [1993] 1 All ER 821; note Lord Goffs view that the process of reference of each
case to the President of the Family Division of the High Court is expected to build up a jurisprudence which will
constitute a sufficiently determinate body of law to make continuing reference to the court in every case
unnecessary-the law should come to be sufficiently determinate for self-application by medical practitioners.
2 R v Brown [1993] 2 All ER 75 (HL).

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 SPRING 1994 The Concept of Law and 'The Concept of Law' 3
understood as the continuing sane and healthy existence, of the girl in question;
the law's express prohibition on -performing or procuring abortion was, accord-
ing to the judge, subject to an implied exception of the sort indicated.3 Mr
Bourne was acquitted, and the ruling in the case somewhat precariously accepted
as governing the sound interpretation of abortion law for the three following
decades. But since a precedent at this level is only persuasively binding, the law
so stated spoke with an uncertain voice to the medical profession, to women, and
to any other concerned citizens. In 1967, to remedy unclarity by providing
clearer legal permissions and prohibitions, the Abortion Act was passed by
Parliament on the initiative of David Steel, MP. The legal determination thereby
achieved has evidently worked as a statement of intelligible rules of law, though
remaining in the front line of moral controversy. Similar controversy has yielded
to different determinations in other places. In Ireland, indeed, the Constitution
was quite recently amended to exclude doubt in the opposite way, and prohibit-
ing abortion in all cases save where death of a foetus is the unavoidable side-
effect of a necessary operation to save a woman's life.
But recently, a challenge in Ireland has arisen on the question whether
conformity to this rule entails a power in the courts to prohibit a woman's
travelling to another EC country to seek an abortion lawful under the law of that
country. Does the constitution require this, or is such an interpretation of it
overridden by the right of freedom of movement among member states? How do
Irish law and Community law mesh in such a case?4 Meanwhile, in Canada and
the USA, supreme courts have deliberated on the meaning of their respective
constitutional rights in respect of legislative regulation of abortion.
Medical professional ethics can have a bearing on the lawfulness of life-and-
death decisions, as in Bland's case. Legal professional ethics can too. Here is an
illustration to ponder. If a lawyer is involved in the defence of a damages claim
for personal injuries, what should she or he do in the following case: A medical
report obtained in the preparation of the defence indicates that the plaintiff is in
fact more seriously ill than his own medical experts have discovered, so that not
merely are the damages claimed less than they should be on the facts disclosed to
the defence, but indeed the life of the plaintiff is in imminent danger owing to an
aneurism? Ought the defence lawyers to warn their fellow human being of his/
her dangerous condition, or must they observe the confidentiality of their own
client's information obtained for the purposes of the litigation on foot? Should
they stand by and let the lower damages be awarded without giving life-saving
information at the cost of higher damages? It has been authoritatively held as a
matter of professional ethics that here the duty of lawyer-client confidentiality
prevails, and the defence lawyers are not free to warn the defendant.5 Not
everyone, I suppose, will agree with the rightness of this determination of the
R v Bourne [1938] 3 All ER 615.
Attorney General v X and others (1992] 2 CMLR 277.
See Spalding v Zimmerman 116 NW 2d 704 (1962) Supreme Court of Minnesota; I owe this reference to
Richard Tur's unpublished paper 'An Introduction to Lawyers' Ethics' (1992), and am much indebted to him for a
series of discussions on problems of professional ethics in relation to law.

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 4 Oxford Journal of Legal Studies VOL. 14
point in controversy. Those who disagree may even find i
that the decision is said to be dictated by 'ethics'.
The point to focus on is the morally controversial char
determination of the ethics question. This is perfectly in
controversy attaching to my other life-and-death cases, t
cases at law strictly so-called. Not merely do we find passi
versy on such matters, but the controversies have all the air o
for the time being at the level of pure moral debate. This i
no basis of possible agreement. We all see that there is a pr
in each of the cases mentioned. Choices are being made bet
between liberty and respect for bodily integrity, betwee
between binding confidentiality and the duties of a Samari
life and what counts as a human person are in issue, too. M
of powerful reasons on each side of the questions raised, bu
differently, and come in the end to different and even ant
the rights and wrongs of the matter.
When we think of these moral issues at the deepest mor
ration is autonomous and discursive.6 Each of these chara
importance and needs explanatory underlining. Moral del
mous, in that each person's careful and reflective judgme
question is for that person the only final authority upon it. J
each person's rational will, their will guided by careful tho
We each must come to our own final conclusion on the rig
open moral issue as it appears to us after fullest reflection
Moral deliberation is discursive, in the sense that it is incumbent on each to
listen with respect, and as an un-coercive equal, to the opinion and argument of
any other, so as to be sure of considering and reflectively weighing every relevant
point and principle. Discursivity means we should come to a conclusion only on
the ground of reasoned debate rather than by simple dogmatic say-so. And there
cannot be appeal to overriding authority, for moral autonomy excludes the
appeal to authority. Since the claim of autonomy is to the ultimate authority of
each moral agent, discursivity is a necessary corollary: each must acknowledge
every other as an equal and co-ordinate authority, with a valid view upon the
issue at stake.
These very features of moral reasoning and decision are, however, just what
makes moral controversy so often insusceptible of being settled intersubjecti-
vely. If people disagree after careful and mutually respectful weighing and
consideration of all morally relevant points put forward by all the discourse-
partners, they do just disagree. We have to be careful here, of course. That moral

6 These characteristics of moral deliberation have their classical source in Kant first and foremost, but have been
elaborated in great depth by many thinkers of the later twentieth century. Book 1 of Alexy's Theory of Legal
Argumentation (trans R. Adler and N. MacCormick, Oxford University Press, Oxford, 1988) is a particularly good
source for consideration of the joint impact of autonomy and discursivity, drawing equally on British analytical
philosophy, Perelman's rhetoric and the work of Habermas and the Frankfurt school on the concept of rational
practical discourse.

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 SPRING 1994 The Concept of Law and 'The Concept of Law' 5
controversy may be unsettlable does not mean that moral questions admit of no
right answer. To find the right answer to them is the very point of moral
reflection for each of us. When we disagree, it is about what we take to be the real
truth of the moral matter. But each would negate moral autonomy if willing to
force another to a moral conclusion by anything other than the weight of the
reasons put forward. If one's partner in dialogue continues to see these weights
differently, the controversy necessarily remains open and unsettled for the time
being.
A view of morality as essentially autonomous is itself open to meta-ethical
controversy. I am not going into that here, though. Herbert Hart himself on
occasion said reproving words about what he saw as excessively 'protestant' in
the moral autonomism of R. M. Hare's theses about moral reasoning.' Yet when
Hart himself speaks in Concept of Law of 'enlightened morality'8 and its place in
practical life, what he says points, for me, just to such an autonomous, rational,
and discursive approach to moral questions as I have mentioned. In some of his
finest work, in Law. Liberty and Morality, he took just such an enlightened
morality as a basis for what he called also 'critical morality'. By that, he meant
moral deliberation directed at the critique of established social institutions,
especially law. He also taught us that this autonomous morality (as I shall call it)
could be directed at the criticism of morality itself, in another sense of the term,
namely conventional social morality, or 'positive morality'.
Here is an example of a possible critique: As a matter of conventional positive
morality, it may be thought as some of the tabloid newspapers keep averring or
implying, that homosexual men are queer and perverted, so that their sexual acts
are abhorrent to decent people, and they themselves should be shunned by
decent people except if they can manage to be thoroughly continent and discreet.
Perhaps some have come to this view by autonomous moral reflection. But I
suspect' that in many quarters such a view is unreflectively held just as the
common view, and justified if at all by appeal to its very commonality. Appeal to
the common view, indeed, is often the most any of us rises to in ordinary life.
What everybody knows fine is that about which I need not always be re-thinking
for myself. Positive morality is a great stay and support to us all in our ordinary
way of going along. But only up to a point. The mere fact that most people I
know take such and such a moral line is of itself finally indecisive as to the
rightness or wrongness of the line they take. It can always be questioned in the
perspective of autonomous morality as critical morality. Of course, it may be that
an initially unreflective view is confirmed, or refined and then confirmed, by a
process of critical argument. It may be that respect has to be given to the
" H. L. A. Hart, 'Legal and Moral Obligation', in A. I. Melden (ed) Essays in Moral Philosophy (University of
Washington Press, Seattle, 1958) 82-107, at 100: 'To characterize morality as primarily a matter of the application
to conduct of those ultimate principles which the individual accepts or to which he commits himself for the conduct
of his life seems to me an excessively Protestant approach. Important as this aspect or kind of moral judgment is, we
need to understand it as a development from the primary phenomenon of the morality of a social group.'
8 H. L. A. Hart, The Concept of Law (Oxford University Press, Oxford, 1961), ch 9.
9 H. L. A. Hart, Law, Liberty, and Morality (Oxford University Press, Oxford, 1963), ch 1.

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6 Oxford Journal of Legal Studies VOL. 14

common view as a matter of respect for the persons wh

But the act of reflection and deliberation whatever its outcome transforms the
character of the view held, and establishes an autonomous commitment to it.
Moral argument in this way challenges us all to reconsider in one direction or
another the taken-for-granted views we have picked up as an inevitable element
in our own socialization. We have all experienced this, however we in the end
come out on any particular question. Nobody drew this to the attention of my
generation more forcefully than Herbert Hart. And a good part of the force of his
appeal was to a more kindly and forbearing moral line on differences of sexual
orientation, coupled with a withdrawal of the law's prohibition from acts which
did nobody harm except perhaps their perpetrator, or, in the case of consensual
sexual relations, perpetrators.
However that may be, while paying a passing tribute to Hart's work on behalf
of a liberalization of moral attitudes and criminal law, I mean today to focus
rather on the controversial and unsettlable quality of moral disagreement than on
Hart's own proposals in moral debate. If morality is autonomous, controversy is
bound to be endemic. That is a necessary starting point for the present theme. It
forces us to a certain view about the conceptual relations between the moral and
the legal. To pick this up, let me now state again that one vital point of legal
institutions is exactly that they exist (inter alia) to settle authoritatively for
practical purposes what cannot be settled morally. Citizens of this country still
disagree morally about the right way to treat PVS patients, or consensual sado-
masochistic violence, or women seeking abortions. But the Parliament and the
judges have severally and cumulatively pronounced on the issues raised, and the
law is for the time being settled in quite clearly formulated terms on points that
are unsettlable morally. Where matters are less morally contentious, or even
morally indifferent, the same process of institutional determination of legal rules
and rulings is no less saliently visible. Law settles what moral consensus cannot,
whether through absence or through silence.
For this, there is a price. It is that the law may be settled in favour of the
morally wrong, even disastrously wrong, answer. Some of us will disagree
profoundly with the law's determination whatever is legally determined. But the
law can be determined. How?
The law speaks through institutional agencies, and these agencies speak with
authority. The authority of law enables them to settle determinate rules for
practical human guidance. We cannot all agree with all the guidance it gives, but
when the law's jobs have been well done, we can agree what guidance it gives.
Though we cannot all always agree, and though the will is often weak even when
the mind assents, the law is sanctioned with penalties and remedies. Legal
institutions exist and their authority is established within a systematic hierarchy.
Law is institutional as well as authoritative. Its authority is backed up sometimes
with measures of coercion, and for one reason or another most people most of the
time keep in line with what it prescribes. So law also has positivity. It sets a

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SPRING 1994 The Concept of Law and 'The Concept of Law' 7
practical common line of conduct, and serious efforts are made by various
agencies to uphold that as an actually governing line. It is important to humans
to have some way of doing this, for they have to share social space and must co-
ordinate their activities and achieve mutual forbearances and set up reliable
frameworks for some sorts of interpersonal co-operation. The very features of
law that set up contrasts between it and morality are vital features to these ends.
But these features do entail that, in matters of law, each individual is not a final
authority co-equal with every other. That is, law is heteronomous. It always
makes the appeal to over-riding authority that autonomous morality as such
never can make.
Thus law and morality are conceptually distinct. Autonomous morality is
autonomous. Law is not. They must be conceptually distinct. To summarize,
law is institutional where morality is controversial and personal; law is authorita-
tive, settling questions by acts of authority, where morality is discursive, always
open to fresh argument on equal terms by any interested participant in the
discourse; finally, law is heteronomous, binding us from without, where morality
is autonomous, binding us by our own reflective judgment and will. Heteronomy
is also a feature of professional ethics where that is delegated to professional
corporations or their disciplinary tribunals or ethics committees for decision in
problem-cases. Professional ethics so understood is also institutional, authorita-
tive and heteronomous. Positive morality also lacks autonomy and discursivity,
albeit not institutional. It is authoritative through the authority of group
solidarity, and unreflectively imitative, hence lacking discursive quality. So it
must be said that the conceptual distinction drawn here is one between law and
morality only in one sense of the latter term, that is, only between law and
autonomous morality. The contrast is then of interest only to those who take
autonomy to be at the roots of rational agency, and hence foundational for
morality in its deepest and most significant sense.
In the remaining sections, I explore the ideas successively of law's institutional
character, its authoritative character, and its heteronomous character, all guided
by a critical reading of The Concept of Law. Finally, I reconsider that which law
and morality have in common, their normative character. This arises in virtue of
their both being addressed to our practical reason. I shall show that reflection on
practical reason in relation to law must lead to some mitigation of the sharpness
of the contrast so far drawn. In the end we shall have to conclude that law is only
relatively heteronomous.

2 The Institutional Character of Law

In turning to an exploration of the institutional character of law in today's
context, it is proper to focus from the outset on The Concept of Law. There, Hart
puts the view that there are three recurring questions that beset juristic

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 8 Oxford Journal of Legal Studies VOL. 14
reflection, and whose exploration yields understanding of
are:

How does law differ from and how is it related to orders backe
How does legal obligation differ from, and how is it related to, mora
What are rules and to what extent is law an affair of rules?
I shall summarize an understanding of Hart's Concept by giving summary
versions of the answers I think he gave to these questions:

Question 1, on law and orders

Law differs from orders backed by threats because mere superiority in force,
even when supported by the habitual obedience of many to the one or the few, is
never enough to account for legislation. Law-making requires authority, not just
coercive power; and authority depends on rules about who ought to be obeyed,
not just habits of actual obeying. Not all such rules can themselves be constituted
by authoritative acts. Power-as-authority is then essentially rule-conferred, but
the rules that confer it and guide human beings in exercising such power are not
to be thought of as coercive orders of any kind.
Law-application also requires authority, again conferred by authorizing rules;
the power to apply law includes the power to order enforcement of sanctions
against law breakers, and the fact that this is so gives the backing of coercive
threats to rules which directly regulate the behaviour of persons in societies.
These rules more resemble orders backed by threats than do the ones that confer
powers of law-making or law-application. But resemblance is not identity. Rules
do not merely oblige us to act in the prescribed way, as do simple coercive orders;
as well as obliging, rules obligate. For this, no merely imperative model of law is
adequate.

Question 2, on obligation, legal and moral

The truth that law imposes obligations (or duties) sets up a strong analogy of
form between law and morality. But again, analogy is not identity. What I must
do for the law's sake is not automatically the same as what I must do for moral
goodness' sake; and vice versa. There are good reasons why duties against
interpersonal violence and deceit, and requirements for respect of possessions or
property, belong alike in any viable legal or any intelligible moral code of
behaviour. Yet despite such overlap of legal duty with moral duty, there are
between them many contingent divergences of content; neither scientific clarity
nor moral concern justify constructing any conceptually necessary relationships
of entailment or of mutual conditionality between the legal and the moral.
The formal analogy of legal and moral obligation comes from the fact that
rules can set standards or patterns of behaviour; these standards have an internal
1o The Concept of Law 13.

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SPRING 1994 The Concept of Law and 'The Concept of Law' 9
aspect characterized by critical reflective attitudes to behaviour. Critical reflec-
tion involves judging actual behaviour by comparison with some conceived idea
pattern. Where highly prized features of life are at stake, and yet conflict with
individual momentary preference possible, critical attitudes to divergent be-
haviour being commensurately severe, rules are conceived as defining what it is
obligatory to do. This signifies a demand more forceful or urgent than that of
what is merely correct or acceptable, but not fully obligatory, to do.
Thus law and morality alike constitute obligations. But legal obligation and
moral obligation remain distinct. It does not seem too contrived to locate the
disanalogy discerned by Hart exactly in what I have been characterizing as the
institutional setting and institutional character of law.

Question 3, on the 'affair of rules'

To enquire in what way law is an 'affair of rules' is to turn to the very theme of
law's institutional setting. This requires further elucidation of 'rules'. Rules are
patterns of behaviour subject to an 'internal point of view' among human agents
Humans exhibit this point of view whenever they treat abstract and general
patterns of behaviour as guides to concrete action and criticism of it in the course
of life. The internal point of view is characterized by a 'critical reflective attitude'
to one's own deeds and to others'. Concrete actions are referred to abstract
patterns, and judged unfavourably if non-conforming.
Rules do come in more than one kind. The primary kind comprises rules that
impose duties, or stipulate interpersonal obligations. But there are other rules
operating at a second level. These are secondary rules that confer powers. These
do have a necessary bearing on the duty-imposing 'primary' rules. Those that
empower general legislation enable new rules of obligation to be made, old ones
amended or repealed. Those that empower law-application, or adjudication,
enable binding decisions to be made about breaches of obligation. The former,
Hart calls 'rules of change'. There are other rules of change, namely those
enabling private persons to alter legal relations by appropriate acts-in-law like
contracting or marrying or settling property. The rules about deciding cases and
organizing trials and the like he calls 'rules of adjudication', defining as they do
all elements in law-application and law-enforcement processes.
Rules of change preserve the law from being static in the face of social or
technological change. Rules of adjudication solve the inefficiency which would
exist if there could be perpetual unregulated disputes about the true meaning and
proper application of the other rules of the system-or if there were no
substantial guarantee that those who are prepared to observe the law voluntarily
will not be sacrificed to the dominion of those who are not. This presupposes that
all who enforce the law, indeed all who participate actively in the processes of
legal change and law-application, have a largely common view of what counts as
the law in force relative to a given population and its governmental agencies.

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 10 Oxford Journal of Legal Studies VOL. 14
This common view is summed up in Hart's famous 'rule
which more in a moment.
Finally, although the law comprises rules, and although these can and do
genuinely guide the acts and decisions of citizens and officials, there is a limit to
the guidance they can give. Being linguistic entities, rules are subject to
vagueness and open texture. Their proper interpretation in concrete cases can be
highly problematic. In the light of the values them embody, they can sometimes
throw up casus omissi, and in general be subject to unstated and even indetermi-
nate exceptions; this can even be true of the rule of recognition itself (I noted
already, for example, that we cannot for the moment be quite sure about the
binding character for British Courts of the European human rights convention
under EC law as applicable in the UK). This entails that law-appliers, and
particularly judges of the higher courts, must have and must frequently exercise
quite substantial discretion in rendering certain a law that ex ante lacks
univocality or certainty in its application to the concrete case. This degree of
discretion and (in effect) free law-making goes beyond anything that nineteenth-
century formalists would have acknowledged; but it falls short of the degree of
legal indeterminacy propounded by American legal realists in the more 'rule
sceptical' of their contributions to jurisprudence.
In summary on the three questions and their answers: law comprises rules
with an internal aspect, not orders backed by threats, and there are rules that
confer powers as well as those that impose obligations. Legal obligations are
different in kind and sometimes in content from moral obligations, and there is
no necessary conceptual connection between law and morality. The legal system
is a structured set of primary and secondary rules. These rules can always give
rise to some interpretative problems, but are nevertheless relatively determinate
and hence often clear and univocal in practical application. So the law can
genuinely guide action and facilitate legal change without perpetual recourse to
courts. When necessary, however, resort can be had to the courts to make a
ruling on hitherto vague or uncertain points. That was the very point at which
this lecture commenced.
The systemic structure of law thus depicted exhibits one aspect of what I cal
the institutional character of law. Especially the focus on rules of change and
rules of adjudication indicates how law-making and law-application are them-
selves structured by law. Structured institutions of law-making and law-
application make possible the determination of specific answers to legally
controversial matters where necessarily moral controversy about the very sam
issue quite commonly remains as lively as ever, or perhaps becomes more lively
as groups and factions contend over reform of the now-determined law. The
institutions of private law, such as contract, trusts, property, marriage, are in a
similar way structured and facilitated by law, with the same effect of facilitating a
considerable determinateness of interpersonal rights and obligations judged by
the law's measure-again, in contexts where mutual moral rights and obligation

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SPRING 1994 The Concept of Law and 'The Concept of Law' 11
are apt to be acutely controversial in such contexts as the break-up of relation-
ships between previously co-operating parties."
There is thus an account of the institutional aspect of law to be constructed
through the analysis of primary and secondary rules. Yet amendments to Hart's
picture are necessary, at least at the level of significant details. First, so far as
concerns the very nature of rules, much work has been done since 1961, most
notably by Rolf Sartorius,'2 by Joseph Raz'3 and by Frederick Schauer,'4 in
clarifying the concept of a rule and the distinctive part reasoning from rules plays
in practical deliberation. This takes us beyond any too simple treatment of rules
just in terms of standard patterns of behaviour backed by an 'internal' attitude
among members of a social group. The point about rules as distinct from other
grounds of practical judgment is the specially 'exclusionary' (Raz) or
'entrenched' (Schauer) quality of rules as reasons. Where they have a bearing on
what to do, they exclude other factors of deliberation unless themselves cancelled
by overriding or defeating considerations of some kind. The need for amend-
ment of his earlier work in this respect was acknowledged by Hart in Essays in
Jurisprudence and Philosophy and in Essays on Bentham.' In his later view, rules
are represented as 'peremptory reasons for action'. As well as being a genuine
advance on the analysis proposed in The Concept of Law, this ties in well with the
point stressed in the present paper, that a very specific characteristic of law is its
ability to make ever more determinate rules and rulings upon practical issues.
These are peremptory exactly in that they close further debate on a question-
whatever may remain open to question, at a certain point the law settles its
answer to issues raised before it. Legal institutions exist with exactly this
capability.
A second area for improvement upon the Hartian account concerns the
differentiation of rules of obligation and power-conferring rules. Within a theory
of rules as grounds of practical reasoning, we need an account of the different
modalities of that reasoning. Rules about what we must do (obligation) differ
from rules about what we may do (permission, permissibility), and from rules
about what we can do, in the sense of normatively operative changes we are
enabled to bring about (powers)."6 In turn, this differentiation must be held
distinct from that version of the differentiation of primary and secondary rules
" See MacCormick, 'Law as Institutional Fact', in N. MacCormick and 0. Weinberger, An Institutional Theory
of Law (D. Reidel Co., Dordrecht, 1986), ch 2; also Law Quarterly Review 90 (1974), 102-29; and see article
'General Legal Concepts' (by N. MacCormick) in T. B. Smith, R. Black (eds) The Laws of Scotland: Stair
Memorial Encyclopaedia, vol 11 (Butterworths/Law Society of Scotland, Edinburgh, 1989). Hart assimilates the
institutive rules of these institutions to his 'rules of change', but this seems strained and contrived to me.
12 R. Sartorious, 'Positivism and the Foundations of Legal Authority', in R. Gavison (ed) Issues in Contemporary
Legal Philosophy (Clarendon Press, Oxford, 1987), 43-61.
1 J. Raz, Practical Reason and Norms (2nd ed, Clarendon Press, Oxford, forthcoming; cf Raz, The Morality of
Freedom (Clarendon Press, Oxford, 1988), chs 1-3.
"' F. Schauer, Playing by the Rules (Clarendon Press, Oxford, 1991).
15 Clarendon Press, Oxford, 1983 and 1982 respectively. I have some reservations about Hart's expression of his
conception of 'peremptory reasons', expressed in my contribution to Gavison, op cit, above n 12.
'1 Some of this is argued more fully in my (hereby superseded) H. L. A. Hart (Edward Arnold, London, 1981),
chs 5 & 6; more recent reflections are in 'Powers and Power-Conferring Norms', forthcoming in RatioJuris, 1994 or
1995; deliberation on this ought to start with J. Raz, The Concept of a Legal System (Oxford University Press,
Oxford, 1970 and 2nd ed 1980), and J. Harris, Law and Legal Science (Oxford University Press, Oxford, 1978).

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 12 Oxford Journal of Legal Studies VOL. 14
which concerns the institutional specialization of legal insti
difference between rules of change, enabling and in various w
governing legislative organs, and rules of adjudication, establi
courts to do their work, and regulating how, and dealing w
connected matters about powers to raise actions or prosecut
courts, execution of judgments, and much else. Save at the m
schematic level, rules of change and of adjudication are better
interrelated rules, not just a pair of rule-types. To take tha
require much thought about individuation of laws."
The moment one goes beyond the pure abstract analysis of w
enters into contemplation of differentiation of rule-types, and t
have to do with institutions of public law and their relation
private law, one necessarily commits oneself to some concep
system. In fact, it is a special virtue of the Concept of Law, s
but earlier work of Hans Kelsen, that it does aim to account f
its systemic quality. This, of course, is as much a matter of the rational
reconstruction of raw legal processes that lie before our gaze, as much a matter of
making the phenomena intelligible by matching them to a model, as it is anything
like the neutral observation of an always-already, present feature of the 'real
world' of the law. But it is intrinsic in the work of legal doctrine and legal theory
to engage in such rational reconstruction and model-building."8 The present
claim that law is institutional is a claim made within legal theory understood in
that way, not an assertion about some unanalysed reality anterior to theory. But
only if the reality of legal processes prior to and apart from theory is of a certain
broad character will the theory apply illuminatingly. Like Hart, I think it does.

3 The Authoritative Character of Law

One aspect of the peremptoriness of legal determinations, whether at the
legislative or at the judicial level of decision-making, is clearly that the law's
answers to practical questions are not only institutionally determined but
authoritative. Within limits, when a legislature has determined a rule upon
something, abortion, for example, that is the matter settled authoritatively for
the time being as a legal issue within a particular legal system, even if the
moralists still contest issues about the right to life versus the right to choice, or
vice versa. Certainly, any enacted law on abortion may throw up problems of
interpretation-Bourne's case involved, as we saw already, an interpretation of
the legislative prohibition of 'unlawful' procurement of abortion in section 58 of
the Offences against the Person Act 1861. What did the statutory term 'unlawful'
imply? When is abortion lawful? (The answer given by McNaghten J was drawn
by analogical reasoning from the Infant Life Preservation Act, and as we saw was

" See Raz, Concept ch IV and Postscript.

" See N. MacCormick, 'Reconstruction after Deconstruction: A Response to CLS', OxfordJ of Legal Stud 10
(1991) 539-58.

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 SPRING 1994 The Concept of Law and 'The Concept of Law' 13
in terms of whether or not a surgeon acted in good faith to preserve the life of a
pregnant woman.) In complex legal systems, other problems may arise, as we
saw. It may be that a constitution places limits on legislative power, and the issue
is whether either a statutory permission or a statutory prohibition of abortion in
stated circumstances can stand with the constitutional provision properly
interpreted. Beyond the limits of the state's constitution, it may be that
international instruments such as the European Convention, or transnational
legal orders like that of the European Community, or both, further complicate
the issue. But again, despite complexity, there exist processes at law for
determining answers to even the most puzzling questions, and determining them
in a finally conclusive manner for any given controversy internally to a particular
system. Where systems overlap and interact, as with European Community law,
European human rights law, and the laws of the European States, there have to
be arrangements for mutual reconciliation of authoritative answers in different
systems if authoritative determination is going to work univocally for persons
over whom two or more systems are proclaimed to have jurisdiction.
There was a time when authoritativeness was apt to be analysed in terms of
sovereign power, and sovereignty itself assumed to be a matter of relatively plain
political fact. The sovereign was the individual or assembly habitually obeyed by
the multitude, but not habitually obeying any other. More sophisticated versions
gave a legal analysis of sovereignty, but still traced all authority ultimately to
sovereign will.
A huge merit of Hart's work was finally to quell the 'sovereign and subject'
myth in legal theory.'9 Authority is a property of institutions internal to a legal
system, and limited authority is at least as common as the unfettered authority
that sovereignty theorists represent as an omnipresent defining feature of law. In
fact, a system-analysis of law such as that offered by Hart, clears the way for an
acknowledgement of possible pluralism of legal systems and legal authorities.
This is, as I argue here and elsewhere,20 essential to a satisfactory understanding
of the legal evolution of Western Europe, where we all live now 'Beyond the
Sovereign State', under the authority of interacting non-sovereign legal systems,
which seem able to interact successfully without any vacuum of authority on
questions of law, even though there is no ultimate sovereignty of Community law
over national law, nor vice versa.
As I said of our Europe a moment ago, 'despite complexity, there exist
processes at law for determining answers to even the most puzzling questions,
and determining them in a finally conclusive manner for any given controversy'.
This brings us back to the topic of the rule of recognition, lightly passed over in
the last section. As I said there, and as is obvious in the present context, the co-
ordination of various authorities under law can work so as to provide firm
determinations on legal questions only if a common view is shared among
19 Concept, chs 4-6, confuting there-noted arguments of Austin and Bentham. Was Hart right about their idea of
sovereignty? I think so, but for a different opinion cf R. Moles, Definition and Rule in Legal Theory (Basil Blackwell,
Oxford, 1987).
20 MacCormick, 'Beyond the Sovereign State', Modern Law Review 56 (1993) 1-18.

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 14 Oxford Journal of Legal Studies VOL. 14
superior decision-makers about whose say goes on any given issue. Hart's
account of this common view is in terms of common acceptance by officials of a
'rule of recognition'. This 'rule of recognition' is one of his most distinctive
contributions to the intellectual apparatus of legal theory. In sharing a common
view about the rules which have to be applied by legal decision-makers in their
official capacity, members of a legal community evince their support for or
acceptance of a rule stipulating criteria of validity of legal rules. The rule
determining the obligation of respect for the rules valid by those criteria is the
rule of recognition. At the heart of a legal system, giving it its unity as system,
lies the rule of recognition. A legal system is thus represented to be a rule of
recognition and the whole structured set of primary and secondary rules that are
valid by its criteria of recognition.
There are some well-known difficulties about this picture. Above all, these
concern the linkages among different secondary rules. The rule of recognition
contains criteria for validity of other rules; the rule of change says who can
validly change rules, so determines the validity of legislative rules-is this rule,
including its provision about validity, valid because of the rule of recognition, or
must the rule of recognition contain legislative acts among criteria of validity
because of the validity of the rule of change? Again, if anyone is directly bound
by the rule of recognition, it is the judges-they, above all, have the duty to
ascertain, interpret and apply valid law. So the rule of recognition presupposes
the existence of judges. But if the rule of recognition is necessary to validate the
rule of adjudication, we are in a logically vicious circle. I once thought we could
resolve this circularity through appeal to some kind of a quasi-historical analysis,
but writers such as Michael Martin and Michael Bayles have shown me I was
wrong; and I am reluctant to resort to Luhmannesque theories of autopoiesis or
self-referentiality of systems to get rid of the difficulty.2'
Indeed, it must be confessed that Hart's picture gets the more problematic the
closer it is examined. Kent Greenawalt22 and the late Frank Dowrick23 have
shown how near-impossible it is to assemble and rank unequivocal criteria of
validity or unitary rules of recognition for such salient instances of legal systems
as the law of the United States of America or that of the European Community.
There are also problems of individuation. How many rules does it take to set up a
set of judicial institutions? Or a legislature and subordinate or co-ordinate
legislatures? 'Rules of Change' and 'Rules of Adjudication' must exhibit bewil-
dering multiplicity or bewildering complexity, or both, leave aside the problem
of separating them off from the rule of recognition. The idea that they all exhibit
a single modality, that of empowerment only, seems implausible; then there
21 MacCormick, H. L. A. Hart, 108-15; for critique, see M. Martin, The Legal Philosophy of H. L. A. Hart
(Temple University Press, Philadelphia, 1987) 35-8 and M. D. Bayles, Hart's Legal Philosophy (Kluwer,
Dordrecht, 1992) 81-3; on autopoeisis in this connection see G. Teubner, Law as an Autopoeitic System ((trans) A.
Bankowska and R. Adler, (ed) Z. Bankowski, Basil Blackwell, Oxford, 1993).
22 K. Greenawalt, 'Hart's Rule of Recognition and the U.S.' I Ratio Juris (1988) 40-57.
23 F. E. Dowrick, 'A Model of the European Communities' Legal System', Yearbook of European Law 3 (1983)
169-237.

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SPRING 1994 The Concept of Law and 'The Concept of Law' 15
remains open a question of explaining interrelated rules of different modalities
that structure our institutions df legal change and of adjudication.
When one examines the foundational instruments of states and trans-statal
communities, one sees a striking fact. Above all, they are concerned to establish
and formally empower main institutions of central government. The composi-
tion of executive, legislative, and supreme adjudicative organs is stated. Any
express normative principles or rules governing their activities are stated;
continuing bodies of private or criminal law to be implemented by courts unless
and until changed can be expressly upheld (as with Scots Law in the UK Articles
of Union of 1707) or impliedly taken into account, as with common law in the
states of the American Union in and after 1787. And, at least in outline, provision
is made to authorize one or more organs to make all necessary or desirable rules
or laws governing matters not expressly reserved or entrenched in the constitu-
tion, or in amendments of it carried in accordance with its own provisions as to
amendment.
Such instruments fall a long way short of laying down complete or compre-
hensive criteria of validity for the whole ensemble of the legal system. And ye
they are extensive and complex instruments, not easily conceptualized as
amounting in any case to a single 'rule of recognition'.
When a state's or a community's legal system set up under such an instrument
actually works as a legal order, what must we suppose is going on? The answer
seems to me to be that there must be an ongoing custom or practice of treating
the foundational authorizations as an in-some-way coherent order of validation
of legal acts, and hence of practices of recognition of other legal sources treated as
binding by duly authorized institutions, especially courts of law. Basic to a
dynamic, that is, a self-changing and self-regulating legal order is, as Hans
Kelsen contended, some foundational or fundamental authorization taken to be
itself valid or binding. Not recognition, but the competence to determine law
either legislatively or judicially, is fundamental to a constitutional legal order.
Nevertheless, without some obligation of respect, the notion of authority to
decide is nugatory. So one must postulate with Hart a customary or practice-
based obligation here, in my submission an obligation to respect the constitution
by giving full force and effect to its provisions and all acts carried out under
them, taking account of the conditions necessary for overall coherence in the
system. The acknowledgement of such an obligation is presupposed in treating
acts-under-a-constitution as authoritative.
Hart was right to stress the practice-based, or customary, character of the
validation of the ultimate rule. It will not do to treat the validity of the ultimate
authorizations simply as hypothesis or presupposition, in the Kelsen style. It is a
custom, custom that sees the overall unity of authorization and hammers out
priority as between rival authorizations, that alone can finally underpin an
abstract constitution and make it constitutive of a going legal order. So in the end
the truth is shared between Hartian and Kelsenian perspectives.

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 16 Oxford Journal of Legal Studies VOL. 14

4 The Heteronomy of Law

We here re-encounter the idea of law's heteronomy, perhaps
mined by its authoritative character. How could law not be h
light of the findings so far? Law essentially has rule-estab
which authoritatively determine legal rulings on practical qu
each private individual subject to a system of law, questions t
may have the deepest moral significance, hence engaging aut
and will, are susceptible of becoming topics of legislation. Th
enact rules in terms deeply opposed to the individual's best j
considered will on that very issue. Alternatively, or addition
subjected to judicial judgment of a most wrong-headed chara
the individual's sovereign moral judgment. (Recall Fr Morrow
the Bland case.) Finally, it is at least a standard if not an inevitab
determinations that they are subject to sanctions of an ultimatel
the physical sense. So the individual will is subject to forcefu
overwhelming) pressure to conform with the public but het
the autonomous but private judgment.
Not that this is without potential moral merit. Legislation i
common rules on matters which could be for ever indeterminate as between
autonomous moral reasoners. There seems no convincing moral argument, ev
with all due respect for autonomy, against the view that we often need comm
rules on points of potential conflict or points where co-ordination is desirab
Indeed we perhaps need them most on the topics on which we least agree as pu
moral issues. Institutional adjudication can provide impartial judgment where
society of purely autonomous reasoners might find their disputes eternal an
debilitating. Sanctions can enhance the probability that common determinatio
of rules by legislation or by interpretation and application through adjudicati
are widely observed, and hence reasonably to be relied on, whether or not
commanding universal autonomous assent.
So the state of affairs brought about by the existence of institutional an
authoritative law is one which may well be judged to have value from a mora
point of view. I judge it so myself, as may be obvious. The autonomous mor
reasoner may, after all, have reason, as Kant himself opined,24 to choose
autonomously in favour of legal order just for the sake of the values it represents.
And how can a subjection voluntarily chosen for good moral reasons be equated
with heteronomy? May not law be autonomous after all, autonomy collectivized,
clothed with interpersonal authority, thus institutionalized? But autonomy
finally unimpaired?
The answer is only that indeed it may be; almost always it is so for some
persons. But still we come up against the controversial character of autonomous
24 I. Kant, Metaphysical Elements of Justice ((trans) J. Ladd, Bobbs-Merril, Indianapolis, 1965) section 47, 'The
Original Contract'.

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SPRING 1994 The Concept of Law and 'The Concept of Law' 17
morality. One person's freely chosen acknowledgement of authority can contri-
bute to another's unwilling bondage under a purely externally enforced law. For
every moral acceptor of law there can be another merely prudential complier.
The prudential view uses legal rules for the advantages they confer; acknow-
ledges legal authority as practically determinative of controversy, and goes along
with the determinations of authority, partly with a simple view to avoiding the
sanctions threatened for breach, at any rate where detection is likely. The purely
prudential complier no doubt adjusts his or her will to the law for the sake of
advantage when available, and for the avoidance of trouble when it threatens.
But even this is a long way short of the stance of one who willingly adopts the
law's determinations as also the content of the autonomous will, and as being so
for the very sake of their institutional, authoritative, and sanctioned character.
We can distinguish again from the still self-commanding will of the prudential
reasoner the merely thoughtless response of the one who complies for the sake of
habit and tradition, to say nothing of the possible existence of a terrified or
terrorized confronter of severe laws, whose will is simply overborne, not
persuaded or convinced by the demands of law, nor even capable of calculating
advantages and disadvantages of conformity, chances of detection, and the like.
All these positions being possible in real societies, it cannot be said that law
escapes heteronomy altogether, even though it may, perhaps must, square with
the autonomy of some. At most, it is an aspiration of actual law to achieve ideal
character, the ideal character it would have if it were rationally willed and
assented to by all its subjects over all its demands. It is a legitimate, if never
achieved, ambition of law to acquire fully autonomous endorsement of its
authority and of the content of its provisions from every one of its subjects. In
the real world, the ambition is everywhere unfulfilled.
An important element in Hart's jurisprudence is his discussion of the
'acceptance' of law. This ties in with the earlier discussed matter of the 'internal
point of view' we may take towards rules or rule-governed activity. The
existence of a legal system depends, in Hart's view, on its being accepted as a
common set of rules by the members of a community. The rule of recognition
and all that follows from it must at least be accepted as a common standard by the
superior officials under a legal system; ideally, it would also be accepted by
citizens as well, but this is not needed for a legal system to exist as a genuine and
positive system of law.25
Since an account of the way rules are potential guides to practical reasoning,
and of the specific role of rules in practical reasoning, is essential to carrying
through the idea of the 'internal point of view' to a satisfactory conclusion in the
light of subsequent debate and criticism, the notion of acceptance also needs to
be reviewed.
A person's stance toward law contains at least three elements: as to the content
of a legal rule or rules, especially a primary rule-does one endorse a rule with
that content, for example a rule prohibiting murder, or one demanding payment
25 Concept, ch 6.

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 18 Oxford Journal of Legal Studies VOL. 14
of a poll-tax? Secondly, as to the authority of the system-
enacted or determined by that authority constitute a reason for
as binding, apart from any question about its content?
sanction-does one fully assent to or will that, sanctions att
implemented in cases of breach, even breach by one's own se
that one whose stance is a reasoned and affirmative one on all po
the law and the legal system. Again, one may assent to
assenting to the content of some, even many, laws; and one may
or go along with the imposition of sanctions in the case even of
does not assent. Here one can even distinguish non-approval
laws from actual disapproval, with different gradations of a
ingly. Or one might minimally accept the authority of law,
laws seem so wrong as to justify open defiance of them, b
acknowledges and assents to the authority of rule-making
within the system for some purposes but subject to at least thes
with a willingness to resist or evade sanctions in given cases. An
(as noted) from prudential acceptance, where the existence o
one's calculations of the best course of action to take, and
awareness of the meaning and interpretation of rules in a he
tive, but no real commitment to law's authority as an exclus
can be shown in tabular form:

'Accept' Rules Content Authority Sanction

Full Endorse Support Will

Moderate Indifferent Support Go along
Reluctant Disapprove Reluctant support Reject
Minimal Defy Support with exceptions Confront
Prudentially Use Observe Avoid

Figure 1. Accepting the law

Wherever persons purport to act unde

makers, or judges, they necessarily a
determine it, representing it as a justif
and judgment by those they say it bind
how the constitution authorizes their u
and hence authenticates the obligatio
they issue, whether legislatively, jud
persons addressed by this 'law' respo
including prudential calculation, for
to accept in at least my first three se
prudentially; the more people do so

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SPRING 1994 The Concept of Law and 'The Concept of Law' 19
calculation (or even some in mere apathy or out of pure fear),. the more weight
attaches to both moral and prudential reasons for acceptance, with or without
qualifications or reservations. One can construct a story which shows how a
community of autonomous practical reasoners can well end up as most contem-
poraries have ended up, subject to a system of externally determined and
coercively sanctioned law. The point of it all is that we need rules, decisions,
determinations. And that is what law gives us. Law may then engage our
autonomous assent, but in its own character it is relatively, if not absolutely,
heteronomous.

5 Practical Reason and Law

Already we have broached the question of practical reason and law. Anyo
acceptance in any degree of any legal requirement is a matter of practical r
and deliberation. The determination of law is also a matter for the prac
reasoning and deliberation of legislators, judges, and others. Judicial and
legislative deliberation usually start from previously issued rules and rulings on
points of law, and always work toward the articulate formulation of a rather
determinate rule or ruling on some actual or potential topic of common or
conflicting concern to the members of a society. The law in its most basic
elements is the body of rules that authorizes these processes of deliberate
decision-making, together with the rules and rulings that the decision-making
process determines. But there are other elements of law that interact with these.
One might think of the relevance of principles as grounds for decision in just
those cases where the prevalence of controversy gives rise to some need for legal
determination of some point. The elements of practical deliberation that are
deployed in working out an answer to some point in controversy are also
elements of law, are they not?
To reflect on this is to confront the obvious Dworkinian objection to the case I
have put so far. For example, has not my running use of the Bland case been
tendentious and coat-trailing? Surely this was par excellence a case of judicial
inquiry into and argumentation about fundamental moral-as-well-as-legal prin-
ciples at the very boundary of life and death? The idea that this illustrates a rule-
based theory of law attracts obvious and forceful objection. The boundary line
between legal practical reasoning and unrestricted (moral) practical reasoning
may be thought either thin and permeable or indeed wholly unreal in such an
instance. Even in less path-breaking instances, the open-textured quality of legal
rules and the omnipresence of interpretative dilemmas requiring recourse to
principle in order to make sense of statute, precedent or constitution, or (more
likely) some thick congeries of any two or all three, does or ought to shake our
confidence in the view that rules as analysed here, or more thoroughly elsewhere
by Schauer or Raz, play the grand role assigned to them. Perhaps they do not
play any role other than that of mere factors in deliberation. Perhaps 'law as a
system of rules' is just a myth, an imagining of the academy obtaining no real

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 20 Oxford Journal of Legal Studies VOL. 14
support in a candid view of legal processes or real practic
hard cases?
This is, in part, a question of fact, calling for quite laborious content-analysis
of judicial and other official decision-making at many levels, in low-level routine
cases as well as in complex and difficult ones handled at the highest levels of
appeal, cassation, or constitutional review. To present a characterization of rule-
based reasoning in the context of a theory of practical reasoning is not to show
that the relevant type of reasoning is actually used by the courts or anybody else.
Nevertheless, as Hart pointed out in his critique of 'scorer's discretion',26 there is
some significance in the fact that it is the courts, or the supreme court, to which
we go to have some questions decided. Surely this is acknowledgement of their
being specially empowered to decide, and by their decision to authorize other
officials to take lawful measures of enforcement.
This institutionalization of a power to decide logically requires a rule-analysis.
And the decisions issued in virtue of that power have surely a special quality in
virtue of their institutional character. This in turn cannot but place restrictions
of relevancy on the forms and contents of argument that are acceptable as
justifications for exercising the power in question. Even if the principle of
attending to the well-being of one's neighbour is common to legal and moral
deliberation, in the legal context it is tied up with questions of causation and
remoteness of damage, mitigation of loss and quantification of damages, all
together being involved in the law of torts as a matter of securing reparation of
injury, by court order and legal enforcement thereof when necessary. The whole
context of deliberation is different as between individual moral deliberation and
institutional judicial deliberation, and this makes a great difference. So too when
the question is not what one individual owes to another who is at an extremity of
suffering, or beyond anything we can conceive of as suffering, but what a
physician exercising a publicly defined professional responsibility for the care of
patients may be publicly authorized by a tribunal of the State to do in respect of a
patient in PVS.
To say truly that both are deliberations of principle concerning ultimate
values; to say truly that both raise moral issues and engage moral responsibilities
is not to elide the crucial difference of institutional setting in legal debates-nor
does Dworkin in any way deny or belittle this fact. To say truly that the nature of
such debate presupposes the possibility of a right solution of dilemmas both in
law and in morality is not to deny that the law's special contribution to practical
life is other than reasoning from grand principles to determinate rules and
rulings-and then encouraging everybody, judges and all, to stick to the
determinations previously achieved. That which is specially legal in a hard case
is more the determination, the ruling towards which we argue than the principles
and values from which we argue.
I agree with Ronald Dworkin that there has to be wide-ranging practical
deliberation in the legal case as well as over the moral dilemma, and that these
2 Concept, ch 7.

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 SPRING 1994 The Concept of Law and 'The Concept of Law' 21
have much in common. But it does seem to me that the nature of the legal case is
such as to call for a ruling that will be actually dispositive of the immediate
problem, and in principle dispositive for future cases of physicians with patients
in PVS. Practical reason directs that legal deliberation issue in a ruling. It also
directs that such a ruling be held to as a rule in future unless and until validly
challenged and repealed or overruled. For these difficult cases, it is a theorem of
practical reason that the legal authorities ought to issue a rule, and, having issued
it, ought to respect it and secure respect for it notwithstanding that the answer
remains controversial from the standpoint of autonomous morality. It remains
indeed an open question of legal sociology how far they in fact uphold such
respect. But interpretive deliberation about the needs of practical reasonableness
suggests an answer; they ought to, and, since they ought to, they probably do,
albeit imperfectly.
Once this point is well-hammered home, however, there does remain another
side to the picture, looking to the quality and correctability of judicial delibe-
ration en route to decision. While the very decision itself has to be authoritative,
the quality of forensic debate and deliberation, and of judicial opinions justifying
decisions, is different; these are indeed discursive and dialogical. They do
involve framing and testing of general principles and of universalizable maxims27
covering the particular decision. The question how best to frame and formulate
relevant principles and maxims, the consequential questions of relative weight
and comparative value in a choice between rival possible formulations, these are
questions engaging practical reason and judgment in exactly the same way as do
questions posed by autonomous morality. The legal process in the phase of pre-
decisional deliberation and in that of post-decisional justification has a principled
and discursive quality strikingly similar to that of moral deliberation, albeit more
formalized and structured. The same is to a degree true of legislative debate,
though partisanship may overlay discursive quality to all too large an extent here.
Where, between rival readings of precedents, or statutory or constitutional
provisions, one asks which is sounder, more plausible, 'better law', one engages
with actual law on the understanding that it is capable of being 'good law', law
that can command rational and autonomous assent. This is an element of the
necessary aspiration of actual legal process to ideal law, or of the perennial 'claim
to correctness' implicit in law-making and law-applying acts."2
Since there is an implicit 'claim to correctness' behind every act of determin-
ing the law, and this is especially salient in the case of judicial decision-making, a
system ought to remain in some measure open to hearing criticism of past
decisions as erroneously founded albeit authoritative for the particular case.
Most systems do allow some challenge to precedents, though usually with
considerable self-restraint. Thus it can indeed be, and in well-ordered legal

" See H. J. Paton, The Moral Law (trans I. Kant, Groundwork of the Metaphysic of Morals, Hutchinson
University Library, London, 1948) 67; cf MacCormick, Legal Reasoning and Legal Theory (Clarendon Press,
Oxford, 1978) chs 4, 5 and 6.
' See Alexy, Theory of Legal Argumentation, 104-8, 214-20, on the 'claim to correctness' and its significance.

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 22 Oxford Journal of Legal Studies VOL. 14
systems it is, the case that some degree of defeasibility does and
even the clearest determination of law. The Bland decision h
criticized, and subjected to powerful analysis and dissenting
Finnis, for example, has forcefully argued, not merely that th
have taken a better form, but indeed that the judges have flat
their attempts to formulate adequate principles of judgment."2
different counsels will prevail on later occasions. It would not
the highest court corrected itself here or elsewhere. Law's aut
not irreversible.
In common with the conclusion of the previous section, these observations
help reinforce the need to qualify the heteronomy we ascribe to law. Law's
heteronomy is a genuine feature of it, but the heteronomy is relative only. It is
also necessary to place some qualification on the contrast drawn between the
discursive quality of moral reasoning and the authoritative character of legal
determination. As we have seen, legal reasoning has a substantial discursive
element in it, but perhaps one should again say that it is only relatively
discursive.
In any event, there has to be a limit to defeasibility or reversibility. Acts done
on the faith of a determination like that issued in Bland's case ought not to leave
the actors open to further legal accusations. The need for settled practice in
future dilemmas also remains acute here and in other like situations. Moreover,
the discursivity of legal arguments is truly constrained by the fact that they start
from and end in authoritative determinations. The very question what a
principle of law is, as distinct from a principle of autonomous morality or pure
practical reason, drives us to the need for an interpretative rationalization of
settled rules of law and prior institutional articulations of relevant principles.
Without the starting point of a systemic analysis of law as a framework of always
incomplete, always imperfectly determinate rules, this aspect of legal discourse
would be unimaginable.
The only other possibility looks to what Stanley Paulson calls an 'empower-
ment' view of legal norms and of law.30 Law could be thought to exhibit ruliness
only in the way of empowering officials to take decisions of certain kinds within
appointed jurisdictions. The grant of power could be on terms that they always
make their decisions in the most reasonable way possible, taking account of all
relevant circumstances, including their own previous decisions and any legisla-
tive instruments issued by legislatures within the jurisdiction. Although this
sounds a bit like what Weber belittled as Khadi-justice, there are to be seen in
each of Llewellyn, Kelsen, and Dworkin hints of a tendency towards supporting
this view of legal institutions and legal deliberation. It is not, of course, the case
that decision-making in such a system would be arbitrary, though the process
might be very costly, since it would be difficult for anything to be finally settled.
And the divergence of public opinion on many of the most problematic topics for
2 See J. M. Finnis, Casenote on Bland, (1993) 109 LQR 329.
31 S. Paulson, 'An Empowerment Theory of Legal Norms', Ratio Juris 1 (1988), 58-72.

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SPRING 1994 The Concept of Law and 'The Concept of Law' 23
decision might embroil the judiciary in potentially de-legitimizing controversy.
All in all, it would seem to me more reasonable to have a system in which the
grant of power also bound the power-holders to a relatively high degree of
commitment to rule-based reasoning.
The possibility of such a commitment is the driving theme of The Concept of
Law. Herbert Hart's genius was to give the idea of law as rule-system as clear and
stylish an expression as one can well imagine. Many have followed where he led.
Naturally, subsequent work has revealed flaws in the edifice, and periodic
reappraisals and revisions have been called for. Different of us will seek to pursue
a generally Hartian line of theorizing in different ways, and there can be no
resting upon the text of 1961 as a last word or a sacred book. Recalling as I now
do with pleasure the vigour of conversation, the geniality of discussion, the sheer
excitement of intellectual contact with Herbert Hart, I conclude that my own
conception, dare I say 'any sound conception', of law owes a huge amount to
Herbert Hart's Concept of Law. There remains much unfinished business, but
what a start to the business that was.

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