Welcome back! So far on The Juris we have covered three main topics concerning jurisprudence (legal philosophy). First, we looked at the most basic question in jurisprudence – what is law. This question, we saw, boasts of a distinct ambiguity between the art of law and the judicial or legislative enactment of law. The former is the subject of study for legal philosophers and is more usually termed study of the concept of law. In our second lesson, we saw that study of the concept of law is thoroughly ‘evaluative’ in nature: it always requires that the jurist make an evaluation or interpretation or argument concerning the good of humanity, before they can establish an apparent description of the facts of law. In our third lesson, we began looking at the debate between legal positivists and anti-positivists/natural law theorists. Briefly put, legal positivists hold that only social facts determine the content of law, whereas the anti-positivists/natural law theorists hold that moral facts determine the content of law. In that lesson we looked at the capitulation of the exclusive legal positivists position, as set out by Joseph Raz. We will now examine the inclusive legal positivist (‘ILP’) position, as espoused by H.L.A. Hart. As summarised previously, ILPs hold that the law’s content can be determined by moral facts, but need not be, and will only be where the social facts enforce such a position. We will look to shed light on this position throughout this lesson and hopefully contribute to our understanding of jurisprudence. We will first set out Hart’s theory. We will then set out basic understandings of Legal Positivism and Natural Law theory, before turning to explain why Hart’s theory remains not morally neutral and is better viewed as a committed, piece of evaluative analysis.
H.L.A. Hart
Near the end of his Concept of Law, Hart announces that his work is general and descriptive. Generality, here is used to explain the idea that Hart is only concerned with law as such, and not the law. As explained in our first lesson, this means that Hart is concerned with the concept of law which essentially involves a thought-experiment about the conditions under which he is said to understand law as perceived by his imagination. With regards to description, Hart claims that his account is descriptive ‘in that it is morally neutral and has no justificatory aims: it does not seek to justify or commend on moral or other grounds the forms and structures which appear’ in his theory of law.[1] We will focus here on this descriptive claim. Two remarks can be made. The first comment is that whilst Hart eschews any justificatory aim, Hart must have engaged in evaluation to come to the result that he wanted to offer a purely descriptive and morally neutral account of law. He must have considered the material and made a conscious decision to reject the claim that it can all be commended as good. He thus chooses to remain non-committal on the apparent goodness or badness of law and to this extent might be viewed as offering an account of law which is not neutral and has justificatory aims. The second comment we can make, is that because Hart’s overall theory espouses a position more consistent with Legal Positivism and not Natural Law theory, his overall theory cannot be ‘morally neutral’. To explain this argument we should make a brief sketch of Hart’s overall theory of law as a set of rules.
Hart portrays the law as a ‘union of primary and secondary rules’.[2] Primary rules govern human behaviour by making them do or abstain from certain areas of conduct; secondary rules provide that human beings may by doing or saying certain things ‘introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations.’[3] Secondary rules are ‘about’ primary rules.[4] They are of three general kinds: rules of change, rules of adjudication and rules of recognition. The last of these is the most important of secondary rules and acts to ‘specify some feature or features possessive 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’.[5] A Hartian rule of recognition, in other words, specifies whether a rule is properly to be considered a law. In order to fully understand Hart’s theory, and how it remains non-neutral as between the claims of Legal Positivism and Natural Law theory, we have to explore more precisely what Hart means by a legal ‘rule’.
Hart develops a theory of rules on the basis of social facts alone. Hart’s general theory of rules is developed throughout the Concept of Law, growing and developing as the book progresses. A rule begins in Chapter one as a social fact that stands in contrast to the ‘mere convergence in behaviour’ of a group of people.[6] When a group of people or most of them, behave ‘as a rule’, i.e. ‘generally’, this is part of what is meant by a rule. In describing a social rule, according to Hart, we may ‘make use of certain words’ such as ‘must’, ‘should’, and ‘ought’.[7] Thus, ‘predictability of punishment’ is an important aspect of legal rules: deviation from the rules are met by officially organised hostile reactions.[8] Predictability of punishment or hostile reaction, however, is not exhaustive of what social rules are. Instead, the third element in Chapter one, is that the legal judge or official takes the rule ‘as his guide and the breach of the rule as his reason and justification for punishing the offender.’[9] Thus, Hart’s opening account of rules may be said to consist of three distinct elements: a) generality of behaviour, b) hostile social reactions to deviations evidenced and expressed in normative language or official sanctions, and c) the use of the rule as reason or justification for punishment.
In the postscript to the Concept of Law, Hart adds the fourth element of ‘acceptance’. Hart explains that his theory has come to be known as ‘the practice theory’ of rules. Here the social rules of a group are treated as constituted by a form of social practice comprising both ‘patterns of conduct regularly followed by most members of the group and a distinctive normative attitude to such patterns of conduct which [is] called ‘acceptance’’.[10] This consists in ‘the standing disposition of individuals to take such patterns of conduct both as guides to their own future conduct and as standards of criticism which may legitimate demands and various forms of pressure for conformity.’[11]
Legal Positivism and Natural Law
To see why Hart’s theory is not neutral as between Legal Positivism and Natural Law theory, we have to explain briefly what the two theories entail. Hart, in the Postscript of the Concept of Law, expressly endorses inclusive Legal Positivism (‘ILP’): as set out at p.250 of the Concept of Law, Hart states expressly that ‘the rule of recognition may incorporate as criteria of legal validity conformity with moral principles or substantive values; so my doctrine is what has been called ‘soft positivism’.’ Moreover, Hart views this thesis as consistent with the insistence, found in the writings of many Positivistic scholars that there is a stringent difference between what law ‘is’ and what is ‘ought to be’; a distinction between the existence of law, and its ‘merits or demerits.’[12] As another Legal Positivist John Austin put it, ‘whether [law] be or be not is one enquiry; whether it be or be not conformable to an assumed standard, is a different enquiry.’[13] This is broadly consistent with the thrust of Legal Positivism more generally: as set out by John Gardner, Legal Positivism (LP) might be a label used to brand all those theorists who endorse the proposition that ‘In any legal system, whether a given norm is legally valid, and hence whether it forms part of the law of that system, depends on its sources, not its merits.’[14] According to Gardner, LP simply endorses the claim that ‘in any legal system, a norm is valid as a norm of that system solely in virtue of the fact that at some relevant time and place some relevant agent or agents announced it, practiced it, invoked it, enforced it, endorsed it, or otherwise engaged with it.’[15]
By contrast, Hart emphasises that Natural Law theory emphasises that we all agree upon the values which law is supposed to protect. HLA. Hart states that any legal system must carry with it what he calls the ‘humble minimum’ of natural law theory inherent in the idea of law.[16] For Hart, to describe the law is to describe basic moral principles which veto murder, violence and theft. In this light, there is a connection between law and morality because the law reflects how humans ordinarily function, given contingent facts about their humanity. This has been called the ‘wired in’ version of Natural Law: moral qualities are identical to or supervenient upon only one kind of natural facts (the facts of human nature) and so there is a universal and discrete human nature, and that the nature of that human nature determines what is morally right.[17] Hart famously claimed that this might be called a natural law minimum, but that natural law theory, in all its protean guises, ‘attempts to push the argument much further and to assert that human beings are equally devoted to and united in their conception of aims (the pursuit of knowledge, justice to their fellow men) other than that of survival, and these dictate a further necessary content to a legal system (over and above my humble minimum) without which it would be pointless.’[18] According to Hart, therefore, the facts of human nature make a moral minimum inherent to the idea of law, but he retreats from the view that this makes the validity of law dependent upon agreement about the pursuits of knowledge and justice of fellow men.
The Non-neutral Nature of Hart’s theory
As set out above, Hart espouses an account of rules which emphasises a) generality of behaviour; b) hostile social reactions to deviations from the generality evidenced and expressed in normative language or official sanctions; c) the use of the rule as reason or justification for punishment; and d) a normative attitude of acceptance by legal participants. As Hart’s endorsement of ‘soft-positivism’ shows, the cumulative totality of these four elements is to produce a theory that takes sides in the division between Legal Positivism and Natural Law theory. Each of these four elements suggests that what is to count as valid law is a matter of source identification (per Gardner’s LP) and not a matter of what is morally good for Mankind and his nature.
Given Hart’s failure to offer a completely neutral account of legal rules, the inevitable question arises whether a neutral account of law is itself acceptable. Dworkin, for example, holds that any theory of law must be evaluative and ‘interpretive’ in the sense of being thoroughly committed to a controversial argument which portrays the law in is ‘best moral light’.[19] It might be the case that jurisprudence has actually been facing a false choice set up by Hart himself. Perhaps the choice was never between a morally neutral description of the concept of law (as set out in our first lesson, such a thought experiment might itself suspect) and an evaluative, interpretation of legal practice. Instead, the choice is, and was, always actually between competing evaluative interpretations of that practice (as between, for example, LP, Natural Law theory and Anti-positivism). That is, between competing arguments (not descriptions) as to what legal theory is for. Hart himself offers no substantive argument for why Legal Positivism is the correct or true theory of law.
Conclusions
Hart’s theory of law is staple reading in most, if not all, jurisprudence schools across the country. That we have managed to highlight one flaw in his analysis – that related to moral neutrality – does not mean that there are not other flaws waiting to be revealed. In finding this main flaw we took sides in the debate between Hart himself and Ronald Dworkin. Hart’s theory fails to remain descriptively neutral and consistent with the initial aims of his legal theory. Thus, his theory succumbs to the criticisms of Dworkin: legal theory is committed and evaluative, dependent on the specific weight of the argument presented by the theorist. Our next lesson will focus more on Dworkin’s own arguments and examine exactly why his anti-positivist position conflicts with the position of Legal Positivists. It is hoped that this lesson has been informative and a source of aid in the difficult subject of jurisprudence.
[1] H.L.A. Hart, The Concept of Law, (OUP: 2012), 240
[2] Ibid., ch 5
[3] Ibid., 81
[4] Ibid., 94
[5] Ibid., 95
[6] Ibid., 9
[7] Ibid.,10
[8] Ibid.,
[9] Ibid., 11
[10] Ibid., 255
[11] Ibid., 255
[12] H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’ (1957) 71 Harv. L. Rev. 593, 596
[13] Ibid., 596
[14] J Gardner, ‘Legal Positivism: 5½ Myths’ in Gardner, Law as a Leap of Faith (OUP: 2012) 19
[15] Ibid., 20
[16] H. L. A. Hart (n 12) 623
[17] Michael S. Moore, ‘Law as a Functional Kind’ in Robert P. George (ed.,) Natural Law Theory: Contemporary Essays (Oxford: 1992) 191
[18] Ibid.,
[19] R Dworkin, Law’s Empire (Hart, 1986), 90