Tuesday, November 24, 2015

Is The Concept of Law a Good Book? Part 4: Hart the Interpretivist

In the previous two posts I considered two conflicting readings of Hart. According to the first Hart tried to identify what law is as a purely philosophical inquiry; according to the second, Hart tried to spell out and illuminate prevailing attitudes on what counts as law. Matters get worse, because there is a third one, and there is textual support for it too. According to this reading, Hart chose a particular view of the concept of law over others. This, I suspect, is the one reading that many who consider themselves as Hart’s followers would most want to resist. It veers very closely to Dworkin’s dreaded suggestion that Hart was an interpretivist. For others, this is not just not a misrepresentation of Hart’s view, it is an obviously mistaken view, confusing of what law is with what one wishes it to be. Julie Dickson called this type of argument “wishful thinking”: it confuses the “nature of law” (something apparently as stable as the nature of water) with what we want it to be. I believe (and have argued) Dickson is wrong to accuse those who hold this view of wishful thinking, but my concern here is not with whether this view is defensible, but whether Hart made it. And, on several occasions, he clearly did.

Monday, November 23, 2015

Is The Concept of Law a Good Book? Part 3: Bad Sociology

In the previous post I said that there is an ambiguity in Hart’s underlying project: It is unclear whether he pursued a “philosophical,” pre-sociological project, or was engaged in something closer to armchair sociology. I also said that most contemporary defenders of Hart prefer the former reading. Despite the popularity of this view among contemporary legal philosophers, there is relatively little support for it in CL, and it makes much more sense to read Hart in the second way. There is no way around the fact that Hart wanted to give a crisp summary of the most important ideas in the book, he said that his book was (also) “an essay in descriptive sociology.” It is also undeniable that Hart thought that close analysis of linguistic usage was central to this enterprise. (This is also denied these days, but the evidence is overwhelming; more on this in the future.) He makes the claim plain in the Preface when he quotes J.L. Austin on how analysis of linguistic usage explains reality. It is even clearer in the endnotes to the book, when Hart says, in his own words, that
there is great need for a discrimination of the varieties of imperatives by reference to contextual social situations. To ask in what standard sorts of situation would the use of sentences in the grammatical imperative mood be normally classed as ‘orders’, ‘pleas’… &c., is a method of discovering not merely facts about language, but the similarities and differences recognized in language between various social situations and relationships. The appreciation of these is of great importance for the study of law, morals, and sociology. [CL 280.]

Friday, November 20, 2015

Is The Concept of Law a Good Book? Part 2: What Is the Book about?

John Gardner, not exactly a harsh critic of Hart or CL, wrote that “[Hart] is the metaphysical monocyclist who, as soon as he begins to wonder how he stays upright, wobbles and risks falling off. His forays into the investigation of his own philosophical outlook, with the possible exception of his rejection of a crudely lexicographical approach in his inaugural lecture, were not notably successful.” Leslie Green, someone else who thinks that we should continue to read the book has written: “Hart’s methodological reflections came late in his career and were sketchy and inconclusive.” That’s only half true. Hart’s remarks on methodology were indeed sketchy and inconclusive, but one finds them from early on. Though Hart did not write a methodological paper per se, he made methodological remarks throughout his writings (Hart’s 1953 Inaugural Lecture has a lot to say about method); CL itself has many such remarks, scattered throughout the book.

It is tempting to say that if even they say such things, there is no need for me to pile on, but pile on I will. The main reason is that while these quotes suggest that Hart was doing a good job in explaining law, but was far less assured in explaining what he was doing. I think the problem is more serious. Hart was not clear about what he actually trying to do in the book, and that has resulted in numerous, and conflicting, explanations of law throughout the book.

Thursday, November 5, 2015

Is The Concept of Law a Good Book? Part 1: Introduction

I plan to begin a series of posts on The Concept of Law (CL). I believe the book enjoys an inflated reputation, which deserves some deflating. Though by no means a central theme in my paper, “The Misguided Search for the Nature of Law” I said in the end that one way for jurisprudence to get better would be to stop reading CL. This did not go well with Les Green: “Many academic lawyers, and most legal sociologists, show no signs of having read Hart’s book at all (or of having understood it if they have).”

Perhaps, but that, of course, would matter if they would miss out on much if they did. Green thinks they would. I disagree. So here it is, as clearly as I can (forever guaranteeing my excommunication from respectable jurisprudential company): The Concept of Law is not a very good book. It is far more derivative than is often acknowledged, and most of its arguments are weak. I will get to this later in detail, but some examples of ideas attributed to Hart but found much earlier in the writings of Karl Llewellyn, see this earlier post.

Though it is hard to separate Hart’s book from its reception, the book and its impact are also responsible for leading jurisprudence astray by separating it from political philosophy. Hart does not bear all responsibility for the latter charge: John Austin and Hans Kelsen (and possibly others) have a hand in that too. But in the English-speaking world, there is no question that CL has been read by many more people and shaped future debates more than others. And it was Hart, after all, who chose to model his ideas on Austin and Kelsen, and not on (say) Bentham’s very different ideas.

Tuesday, November 3, 2015

The Neglected Alternative: Interpretivism

If, as I suggested, conceptual jurisprudence can neither make sense as an a priori conceptual inquiry nor as a “descriptive”sociological inquiry, is there anything left? There may be. To see this, it is helpful to present a version of the sociological strand of jurisprudence broken down into four separate steps:
Step 1: Start with the practice, gather information about what people think law is, what their attitudes toward law are, as well as evidence about the practice itself.
Stage 2: Extract certain features from the practice that are important, central, and so on.
Stage 3: Make those features the foundation of a “theory” of the practice.
Stage 4: On the basis of the theory developed in stage 3, reinterpret the remaining parts of the practice and dismiss certain things that might be thought to belong to the practice as not really belonging to it.