Is The Concept of Law a Good Book? Part 6: Distortion as the Price of Uniformity

Probably Hart’s best-known argument from the opening chapters of his book is directed at the claim that all laws are commands. It is nowadays often said that Hart dealt a death blow to command theories of law. For those who think of jurisprudence as a kind of progressive science of accumulated knowledge, here was a giant leap forward, a major correction of errors of committed by Bentham, Austin, and Kelsen.

Except that it wasn’t.

In a previous post I showed that the claim was not just familiar but ancient when The Concept of Law was published; nor was this critique written in some arcane source and then forgotten. It could have been found pretty much anywhere you bothered to look. Apart from the names mentioned in the previous post, extensive, detailed critiques of Austin are found in Henry Sidgwick, Frederic Maitland, Henry Maine, Frederic Harrison, Thomas Erskine Holland, and others.

Though familiar by the time Hart made it, it is worth spending a bit of time on this argument, because at least as presented by Hart, the argument is much less powerful than commonly assumed. The law, said Hart, contained areas of law that were not commands. Instead, he said, some laws “provide individuals with facilities for realizing their wishes, by conferring legal powers upon them to create, by certain specified procedures and subject to certain conditions, structures of rights and duties within the coercive framework of the law (CL 27–28). Hart adds that this power given to people “to mould their legal relations with others by contracts, wills, marriages &c., is one of the great contributions of law to social life” (CL 28).

Hart then considers the possibility, suggested by various legal theorists, that these are just fragments of duty-imposing rules. Hart does not say that this view is illogical, only that it is “obscuring” (CL 41) and “distort[ing]” (CL 38): “Rules conferring private powers must, if they are to be understood, be look at from the point of view of those who exercise them….Such power-conferring rules are thought of, spoken of, and used in social life differently from rules which impose duties, and they are valued for different reasons.” (CL 41).

Here is how Green glosses this point:

There is no essentialist, ‘metaphysical’, answer to the question of how to divide up the legal material into individual laws; the best approach is one that lets us understand law as it is for those who actually use it, most of whom live outside courtrooms. Power-conferring rules are thought of, spoken of, and used in social life differently from rules that impose duties, and they are valued for different reasons.

Green’s makes two claims here. The first is this: “Power-conferring rules are thought of, spoken of, and used in social life differently from rules that impose duties.” This is an empirical claim, although neither Hart nor Green supports it with any evidence. (There is an advantage to not backing up empirical claims with evidence. It lends an air of “philosophical” profundity to what is an factual observation not supported by evidence.) Once it is recognized for what it is, it is worth asking: Is this how everyone thinks about law? What do we do about instances in which some people think of law in one way, and others differently? What is “the best” approach then?

In a moment we will see that not everyone thinks of contract law in this way, but for now let’s suppose Hart’s claim is true. Green then adds a further claim: “the best approach is one that lets us understand law as it is for those who actually use it.” This is a thesis about social explanation. It is a claim about the best way to explain social facts. And it is by no means as obvious. If a theorist merely repeats how people think about a practice, he has not added to their understanding: he reported what they already know. In this instance, people did not need Hart to know that they have two distinct categories—contract law and criminal law—which they treated as different. Insight comes when showing how supposedly similar categories are in fact different (or vice versa), by showing how familiar categories hide important matters from view. Here is a legal example. It is profoundly uninteresting to say that people who “actually use” law think of plea bargains and of torture in very different ways. Langbein’s classic essay was (and remains) powerful because it showed that the two are not that different. It explained the practice of plea bargaining by challenging the way people understand the law.

For a more “jurisprudential” example (although perhaps not jurisprudential by Green’s restrictive lights), recall the opening sentence of Calabresi and Melamed: “Only rarely are Property and Torts approached from a unified perspective.” Lawyers classify property and tort as two very different areas of law. In the traditional civilian analysis tort law belongs to the law of obligations, property to the law of things. (Property and tort still belong to “private law.” The essay later adds criminal law to the mix, which traditionally belongs to another category altogether, public law.) One of the reasons why C&M has been such an important contribution to jurisprudential literature is because it offered a very different way of looking at law (another view of the Cathedral), one that departed from the way lawyers before the article classified the world.

Turning now to a point closer to Hart’s discussion, consider the following, from Thomas Schelling’s Strategy of Conflict:

Among the legal privileges of corporations, two that are mentioned in textbooks are the right to sue and the “right” to be sued. Who wants to be sued! But the right to be sued is the power to make a promise: to borrow money, to enter a contract, to do business with someone who might be damages. If suit does arise, the “right” seems a liability in retrospect; before it was a prerequisite to doing business. In brief, the right to be sued is the power to accept a commitment.

If I may indulge in a bit of unsupported empirical claims, many people don’t think of contract law as giving them “the right to be sued.” (Although some apparently do: Schelling, despite being an economist, is human too.) And it is precisely for this reason that Schelling’s words are insightful. By twisting the prevailing understanding of contract law in this way Schelling was able to illuminate the value of contract law: contract law is valuable, he said, because it enables people to make credible commitment to someone who might otherwise be unwilling to take their word. It is the threat of a legal sanction that makes contract law valuable.

Schelling’s words are important here, not only for their challenge to the view that “the best” way to understand a social practice is (always) considering the way people understand it themselves. They also weaken Hart’s substantive claim that contract law is power conferring. People can agree to exchange goods and services with or without contract law. If they feel moral compunction about breaking their promises, or fear the burning fires of Hell, or are concerned for their business reputation, they will follow through with such exchanges even when “executory” (i.e., when performance is set for a later time). And they will do so even when there is no contract law. Contract law does not create the possibility for exchange where it did not exist before. What contract law does is provide an additional enforcement mechanism for those situations in which the other mechanisms mentioned are unlikely to work. There is therefore a deep truth, not just philosophical wizardry, in the view that sees contract law rules as partial duty-imposing rules. Contract law matters (it is “valued,” to use Hart’s term) as an enforcement mechanism, or at least as a mechanism for threatening enforcement. It can be seen as a way of making it possible for a party to signal to another its seriousness. This perspective is true just as much, perhaps even more so, for people who “live outside courtrooms” and want to keep it that way.

There is a sense this view of contract law is consistent with seeing it as power conferring, but not in Hart’s sense. Contract law does not expand people’s power to do things they otherwise cannot do: people do not need the law to exchange with others. Contract law is power conferring in the sense that it specifies the conditions under which an individual can call upon the state to use its force against another person in order to compel him to do something (perform a contractual obligation, pay damages). But notice that this power-conferring rule does not fit any of Hart’s secondary rules. It is neither a rule of recognition, nor of adjudication or change. It is a rule of enforcement. (I will return to these rules of enforcement later, as they challenge Hart’s account in another, perhaps more fundamental, way.)