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.

We shall consider in turn each of these remedies and show why law may most illuminatingly be characterized as a union of primary rules of obligation with such secondary rules. [CL 94, emphasis added.]
Or this one:
The main theme of this book is that so many of the distinctive operations of the law, and so many of the ideas which constitute the framework of legal thought, require for their elucidation reference to one or both of these two types of rule, that their union may be justly regard as the ‘essence’ of law, though they may not always be found together wherever the word ‘law’ is correctly used. Our justification for assigning to the union of primary and secondary rules this central place is not that they will there do the work of a dictionary, but that they have great explanatory power. [CL 155, emphasis added.]
Or this one:
[W]hat really is at stake is the comparative merit of a wider and narrower concept or way of classifying rules, which belong to a system of rules generally effective in social life. If we are to make a reasoned choice between these two concepts, it must be because one is superior to the other in the way in which it will assist our theoretical inquiries, or advance and clarify our moral deliberations, or both….If we adopt the wider concept, this will lead us in theoretical inquiries to group and consider together as ‘law’ all rules which are valid by the formal tests of a system of primary and secondary rules, even though some of them offend against a society’s own morality or against what we may hold to be an enlightened or true morality. [CL 209, all emphases added.]
Or, one last example:
[W]e rejected [the] claim [that the title of valid law should be withheld from certain rules on account of their moral iniquity]; but we did so, not because it conflicted with the view that rules belonging to such a system must be called ‘law’, nor because it conflicted with the weight of usage. Instead we criticized [this view]…on the ground that to do this did not advance or clarify either theoretical inquiries or moral deliberations. [CL 213–14.]
On this reading, the union of primary and secondary rules is what law is not because it is a discovery about what law is, not even because lawyers would accept it presented with it, but because Hart thought it explained the law better than other accounts. Austin’s command theory was wrong because it was inconsistent with what it sought to describe. But the same could not be said of all “natural law” views. In the passages quoted, Hart acknowledged that legal practice is consistent with both the “natural law” and the “positivist” views: it was his “reasoned choice” that between two possible understandings of law, the “positivist” view had greater explanatory power. And if it was a “reasoned choice,” it is open for reasoned debate where others present their reasons for choosing differently.

Tie this to my earlier post on interpretivism and the emerging view is not hugely different from Dworkin’s. How does this fit with the more accepted readings of CL? In a recent essay Les Green acknowledged the existence of such passages, and tried to explain them away in two ways. First, he said, they only appear in a few paragraphs toward the end of the book, and made in response to an argument made by others; and second, at most they show that “Hart thinks a correct understanding of law is a better foundation for moral deliberation than a confused or mistaken one.”

Both claims are unconvincing. If Hart really thought that the nature of law is a constant to be discovered, he would have said so instead of describing the virtues of a positivist understanding of law. And as the quotations appearing above show, though explicit only towards the end of CL, Hart adumbrates such ideas much earlier in the book. The second claim is simply not supported by what Hart says. Hart does not say that the positivist reading is “correct”; he says that he “assigns” to the union of primary and secondary rules the status of law because it is “illuminating” and “has great explanatory power.” 

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