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.

A Surprising Friend for Jurisprudential Naturalism

A bit of a break from The Concept of Law. (The best is yet to come.) In the meantime, a couple of paragraphs from Lon Fuller’s, Legal Fictions (1967). The book is largely a reprint of a three-part article published in 1930–31. The quote below is from the short preface added in 1967. In it he anticipated Brian Leiter’s invocation of Quine’s “Two Dogmas of Empiricism” against conceptual jurisprudence by several decades.

Is The Concept of Law a Good Book? Part 5: The Originality of Hart's Critique of Austin

It’s time to come back to The Concept of Law after a long hiatus. And after my extended discussion of Hart’s methodological confusions, it’s time to get to substance. Chapters 2 to 4 of the book are dedicated to the explication and critique of John Austin and, to a lesser extent, of Hans Kelsen. It is often said that it was Hart’s arguments in these chapters that dealt a decisive blow to Austin’s work and more generally demolished the command theory of law. Let us consider these claims in order.

To give Hart credit for his critique of Austin’s ideas, or “command theories” more generally, suggests that until Hart came on the scene Austin was considered something of an established truth. The reality is that not one of the arguments Hart presented against Austin was novel. In fact, by the time The Concept of Law was published, the arguments against Austin were more than half-a-century old.

Is The Concept of Law a Good Book? Part 5: The Originality of Hart's Critique of Austin

It’s time to come back to The Concept of Law after a long hiatus. And after my extended discussion of Hart’s methodological confusions, it’s time to get to substance. Chapters 2 to 4 of the book are dedicated to the explication and critique of John Austin and, to a lesser extent, of Hans Kelsen. It is often said that it was Hart’s arguments in these chapters that dealt a decisive blow to Austin’s work and more generally demolished the command theory of law. Let us consider these claims in order.

To give Hart credit for his critique of Austin’s ideas, or “command theories” more generally, suggests that until Hart came on the scene Austin was considered something of an established truth. The reality is that not one of the arguments Hart presented against Austin was novel. In fact, by the time The Concept of Law was published, the arguments against Austin were more than half-a-century old.

Hart presented three challenges to Austin’s view in chapter 3:

(a) Laws may impose duties on those who make them. Therefore, the claim that law is a command issued by someone who is not subject to the command is false.

(b) Some laws are power-conferring: contract law or probate empower people to do certain things, they do not command them to do anything. 

(c) Customs’ status as law is not the product of any “conscious law-creating act,” so it is false to think of law’s as limited to intentional commands.

Here is the now-forgotten Jethro Brown, writing in 1906, and summarizing some earlier criticisms of Austin:

Here is Brown, making the point that the command theory does not fit customary law:

Brown also considered the idea of empowering laws as commands to someone else (“a statute empowering Borough Councils to impose a new rate is also a command to the subjects to pay the rate when called upon to do so”, “It may be said of [rules that allow people to create a corporation] that they involve a real imperative, i.e. the command to the judge”). 

Before Brown, James Bryce, writing in 1901, explained why Austin’s view of sovereignty was inadequate for most countries in the world, where the lawmaker is constrained by law:

At times, not just the ideas are familiar, even the words used are similar. Here is Hart:

To command is characteristically to exercise authority over men, not power to inflict harm, and though it may be combined with threats of harm a command is primarily an appeal not to fear but to respect for authority. [CL 20.]

And here is Jethro Brown again:

The essence of command consists in the fact that it is imposed by a body which speaks with authority and can somehow or other punish disobedience, not in the fact that its being obeyed through fear of a penalty. [Brown, The Austinian Theory of Law, 343–44.]

Not early enough? Sources too obscure? How about the Encyclopædia Britannica (9th ed., 1882), volume 14, in the entry “Law”:

That Hart knew of these books is not in question. In 1953 he was asked to write a short survey about jurisprudence in Britain. His essay contains a list of leading jurisprudential books used in British universities. Here is how the list begins:

When understood in context—when we remember that The Concept of Law was intended as an introductory text on jurisprudence and was based on lectures delivered to undergraduate law students—the opening chapters of The Concept of Law are understandable (although citation to some of these earlier works would have been appropriate). Austin was a convenient way to start the discussion, and the relative simplicity of his ideas made it easy to introduce the subject with his work. It is not widely known today, but even in this respect The Concept of Law is not original. By the time it was published, opening a course on jurisprudence with Austin-bashing was itself an established practice. Jolowicz, in his Lectures on Jurisprudence (published 1963, but based on lectured delivered between 1924 and 1948) said that “Austin’s doctrine forms a very good target—we must set it up and see it clearly in order to throw bricks at it” (Old habits die hard: Shapiro and Marmor.)

If The Concept of Law had been treated for what it is, a textbook for students, none of this would have mattered much. It does matter against the familiar refrain that before Hart jurisprudence was an amateurish and unsophisticated and that with The Concept of Law Hart made it “professional.” It’s difficult to see how this is so when the same arguments Hart made are found in the writings of the “dilettantes” who preceded him. 

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.

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.]

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.