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.]

The key point here is that human achievement consists not just of the physical structures that they build, but also—no less so—of the mental constructions they created. Much of the so-called “linguistic turn” overtaking philosophy and other academic disciplines at the time was, to simplify, an attempt to explain this world. The central idea was that this world could not be explained only by observation at behavior, including what B.F. Skinner called “verbal behavior.” Hart stated clearly that he believed it was important pay attention to the way these linguistic usages were used to construct social reality. And since this social reality had no physical existence, it was important to penetrate into people’s attitudes that constituted the social world. Attention to language was key to this enterprise.

There are numerous examples of this approach in CL. Early on Hart says: “Most educated people have the idea that the laws in England form some sort of system, and that…in almost every part of the world which is thought of as a separate ‘country’ there are legal systems which are broadly similar in structures in spite of important differences” (CL 3, emphases added). The claim about what most people believe is clearly an empirical claim and it is derived from their linguistic practices. (As Hart did not conduct any empirical studies, what else could it be based on?) People’s “idea” is taken for granted for the rest of the book. Why? Because this “idea” (or, as the title of the book clearly has it, “concept”) is the object of inquiry, this is what the book tries to elucidate. What the philosopher-sociologist is to do is to explain in virtue of what this statement is true: he is seeking the “principle or rationale” (CL 215) behind people’s categories. What is not in question—indeed, within the framework of Hart’s inquiry cannot be questioned—is the truth of this classification. It is thus taken for granted that the fact that international law “lacks a legislature” makes it a less central case of law than domestic law, because that is what the “educated man” thinks. As Hart put it, “it is perfectly clear to everyone that it is [the] deviation [of international law and primitive law]…from the standard case which makes their classification appear questionable” (CL 4). 

How is this to be reconciled with what comes later, especially the famed analysis of law and legal systems in terms of primary and secondary rules? It is unclear, but Hart might have said that his analysis of law as primary and secondary rules would be accepted by all lawyers, if they only put their mind to it: he was merely pointing out something that was already there, implicit in lawyers’ (or “educated people’s”) thinking about law. This is a sociological enterprise of sorts. It assumes that law is a practice created by attitudes, that those attitudes are revealed by (empirical) linguistic usage. By understanding the words, one gains greater understanding of the social practice called “law.”

On this reading, to accuse the book, as many sociological critics have, of not having any sociology, is to misunderstand its methodology. Ironically, some of Hart’s “philosophical” defenders endorsed this criticism as evidence that Hart was not doing sociology at all. But I think both camps get Hart wrong: For Hart, linguistic usage is the evidence needed for a proper sociological inquiry.

To many legal philosophers, to admit that Hart wasn’t engaged in the pre-sociological, conceptual or philosophical enterprise of identifying what it makes to be law (in the abstract) would make CL far less interesting. It is implicitly admitted that in that case the book would really be armchair (and as such, bad) sociology. But these passages are there, so by rejecting all of them, the book’s champions have to admit something else: that on the most basic question a book should be clear about—what it is about—CL is seriously confused. Green quite explicitly says that “[t]here is a difference between what a philosopher thought he was doing, what he said he was doing, and what he was actually doing.” So either Hart was doing something bad, or he did not know what he was doing. I guess when this is the choice, the latter option is perceived as the less bad, but it is hardly a good start for what it supposed to be a philosophical masterpiece. 

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