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.

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.

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.

Conceptual Jurisprudence Isn’t, Says a Former Leading Proponent

Who wrote this?

A more general defect in my early invocation in jurisprudence of linguistic philosophy was a failure to make clear that understanding, however sophisticated or profound of the workings of language could only yield significant results for jurisprudence where difficulties had arisen from a failure to identify the way in which some particular use of language deviated from some tacitly accepted paradigm, or where radically different forms of expression were mistakenly assimilated to some familiar form….The methods of linguistic philosophy…are not suitable for resolving or clarifying those controversies which arise, as many of the central problems of legal philosophy do, from the divergence between partly overlapping concepts reflecting a divergence of basic point of view or values or background theory, or which arise from conflict or incompleteness or legal rules. For such cases what is needed is first, the identification of the latent conflicting points of view which led to the choice or formation of divergent concepts, and secondly, reasoned argument directed to establishing the merits of conflicting theories, divergent concepts or rules, or to showing how these could be made compatible by some suitable restriction of their scope.

The opening sentence is a giveaway. This is, of course, Hart reflecting back on his earlier work in the Introduction to Essays in Jurisprudence and Philosophy. This passage is not as clear as one would hope, but as I read him, it seems clear that in 1983 Hart thought it was a “defect” of his earlier work that it did not recognize that many jurisprudential disputes arise as a result of “the divergence between partly overlapping concepts reflecting a divergence of basic point of view or values or background theory.” That, not to put a fine point on it, a central element in Fuller and Dworkin’s critiques of Hart.

Jurisprudence—Stop that Right Now!?

Another thought in relation to Les Green’s comment on my paper. He entitles his post—presumably summarizing my view—as “Jurisprudence—Stop that Right Now!” This is more-or-less the opposite of what I was saying. After all, even the few pages of the paper he did discuss, I talk about “reviving” jurisprudence, not exactly the words you’d read from someone suggesting that we should stop that right now. It is tempting to say that the headline is a good illustration of the point I was trying to make: that in certain circles the following two equations are held to be true: jurisprudence=legal philosophy, and that legal philosophy=the a priori search for the nature of law.

Only if one accepts both equations, then the message of my paper is that we should stop jurisprudence. But I reject both. In fact, in my paper I asked: “Why should we think that this is what jurisprudence must be?” If jurisprudence is understood as, roughly, discussions on law in general, then my point was not that such an inquiry should end, but that such an inquiry should continue but in a rather different manner from the way it has been going on for the last several decades. It should seek to involve economics, psychology, political science, comparative law, sociology, alongside with philosophy. If one thinks of jurisprudence as the inquiry about “law in general,” then it is an assumption, not argument, that a priori philosophy would play any role in it, let alone a dominant one.

What Is the Argument Against Conceptual Jurisprudence, Part 4: Bad Sociology (cont.)

According to Marmor, “[l]egal instructions are meant to generate concrete results, providing people with particular reasons for action, thus aiming to affect our conduct in some specified ways.” That laws are “meant” to generate concrete results is not a claim about the “nature” of law, but an empirical claim about the attitudes of certain people about law, or perhaps (to tighten the comparison with art, discussed in the previous post) an empirical claim about the intentions of those who make them. Either way, Marmor does not provide any empirical evidence to support it.

If not meant as an empirical claim, then it must be understood as an interpretation of the practice, something like “based on what laws are created for, they are best understood as meant to generate concrete results.” These are normative claims, and, as it happens, they are not universally accepted. Legal scholars argued that there is sometimes value in laws not always generating concrete results, that there is value in laws that are purposely vague as they generate political debate, deter conduct, be flexible enough for dealing with changing circumstances, and so on.

What Is the Argument Against Conceptual Jurisprudence, Part 3: Bad Sociology

In my previous post I explained why the pre-sociological branch of jurisprudence (identifying the “category” that is law) is misguided. But there are also those who think that jurisprudence is a kind of sociological enterprise. Hart is best understood as belonging to this camp. It is not just that what he called his book “an essay in descriptive sociology.”  It is numerous comments he made throughout the book that suggest that he saw himself as someone who seeks to clarify the underpinnings of the views of the “educated people” (Concept of Law, p. 3). There are, as I show in my paper, many others holding this view. Here is one example, from Ken Himma: “Armchair sociology of the sort at which philosophers excel (usually without realizing that they are doing sociology) is sufficiently reliable as long as one belongs to the linguistic community under consideration.”

Against this view I advanced two simple but related arguments. First, that the methods used for gathering the data—specifically, sitting in one’s armchair—are  thoroughly unreliable; the second, that there is in fact a wide diversity of views among people. And we know this because even in the tiny sample of the population that comprises of legal philosophers we see different views on the nature of law. So any “sociological” account that presents one view about the concept of law is simply inaccurate. Hart, we know from his biography, was an acute observer. His book may perhaps be profitably read as a snapshot of the prevailing views of educated elites in 1950s England about law and politics. (More on this, perhaps, later.)  But there is no reason to think that these views are universally held.

The Argument Against Conceptual Jurisprudence, Part 2: The A Priori Version

As I don’t just want to repeat what I said in my paper, I present here a somewhat different take on the issues. So here is a passage from an article Les Green published in 2008, which I did not discuss in my paper:

Law tells us what we must do, not merely what it would be advantageous to do, and it requires us to act in the interests of other individuals or in the public interest generally, except when law itself permits otherwise. Every legal system contains obligation-imposing norms and claims legitimate authority to impose them.

Green draws from this a surprising conclusion: “neither a regime of ‘stark imperatives’ that simply bosses people around nor a price system that structures people’s incentives while leaving them free to act as they please would be a system of law.”

The claim about the regime that bosses people around is inconsistent with Hart, who said that “In an extreme case the internal point of view…might be confined to the official world….The society in which this was so might be deplorably sheeplike; the sheep might end in the slaughter-house. But there is little reason for thinking that it could not exist or for denying it the title of a legal system.” This departure from Hart was probably intentional. After all, the whole point of Green’s paper was to argue that Hart was wrong to argue that there is no necessary connection between law and morality.

The Argument Against Conceptual Jurisprudence, Part 1: The Crib Notes Version

I said in an earlier post that Les Green completely missed my argument in my paper “The Misguided Search for the Nature of Law.” But what is the argument? One way of finding out is to do what Green did, namely “slog through” all fifty two pages. Some responses I got to the paper suggest that those who bother can make sense of it.

But, as Bentham said, “the age we live in is a busy age.” (And that was before Facebook.) So in this and a few more posts, I will try again, more briefly.

First, a visual summary:

More on Analytic Jurisprudence v. Descriptive Sociology

In my last post I quoted Green’s claim that there is “no suggestion [in The Concept of Law] that legal system is a ‘family-resemblance’ concept or anything like it.” Well, not exactly:

For the notion of ‘family resemblance’: see Wittgenstein, Philosophical Investigations, i, paras. 66–76….Wittgenstein’s advice (op. cit., para. 66) is particularly relevant to the analysis of legal and political terms. [Concept of Law, p. 280].

One would think that a legal system is a legal or political term, so the family resemblance idea is one for which Wittgenstein’s idea would be “particularly relevant.” But even if not in relation to a legal system, Hart clearly thought the idea of family resemblance was useful for explaining the notion of a rule (Concept, p. 15). If that’s the case, what is the the reason that what counts as a legal system is fixed in terms of necessary and sufficient conditions, while other legal and political terms are to be understood in terms of family resemblance?

What Is Conceptual Jurisprudence about?

Some more thoughts on the misguided search for the nature of law. One of the themes in my paper, one that I think deserves making more explicit, is that under the name of “general jurisprudence,” or the search for the “nature of law,” one finds two quite different, possibly contradictory, endeavors. Like much else in contemporary (Anglophone) jurisprudence, these seemingly different enterprises can be traced back to The Concept of Law, and specifically to its famous preface, where Hart claimed to be doing both “analytical jurisprudence” and “descriptive sociology.”

I hope to dedicate later posts to The Concept of Law and whether it deserves the praise heaped on it. (The answer for twitter: it doesn’t.) For the time being I want to consider the book’s legacy. Few nowadays think, as far as I know, that “analytic jurisprudence” and “descriptive sociology” are perfectly congruent, which is why different people who see themselves as following in Hart’s footsteps end up picking sides. John Gardner is someone who favors the analytic jurisprudence interpretation, Ken Himma adopts the descriptive sociology interpretation. More interestingly, many scholars seem to shift between the two interpretations.

Why So Long?

My paper, “The Misguided Search for the Nature of Law” is long. Les Green complained it was difficult to “slog through” it, and apparently lost his bearings in it. Only in the final three pages the mist somewhat cleared and he saw something he could respond to. Perhaps Green thought that in those pages I was summarizing what came before. I wasn’t. That may be a quirk of mine, but I often prefer to end papers with a suggestion on where one should go forward instead of simply giving a shorter version of what was said before. The actual arguments are not there.

But why so long? Against the familiar practice among legal philosophers, the paper included many footnotes, and even many quotations. This was intentional. It is a common accusation among analytic legal philosophers to blame others of misrepresenting their views. (Hey, I just did that too!) It is also not unheard of to find one legal theorist attributing views to another without bothering to cite or quote them, in the process getting their views wrong. The worst victims (no, not culprits!) of these practices are Lon Fuller and Ronald Dworkin.

Misunderstanding the Argument

A bit of history: I posted to SSRN a paper entitled “The Misguided Search for the Nature of Law.” Les Green dedicated the inaugural post of his blog to it. He didn’t like it. That’s okay (and not exactly unexpected). Unfortunately, he did not address any of the actual arguments in it.

To the extent that he does try to address my paper, he says this:

He seems to flirt with the idea that there is a sociological jurisprudence that is not only a sociology of law, but a sociology of the nature of law (to the extent that law has a nature).  In any event, we are all to stop ‘conceptual analysis’.  What we are to start is not clear, though it seems to have something to do with measuring and counting–but without any preliminary worries about what counts as what.

The best defense of this proposal would simply produce the goods.

This is a misunderstanding of my argument.

From whose bourn no traveller returns?

This blog has been silent—dead really—for a very long time. Reviving it has been on my mind for a long time, but somehow I didn’t do it. It took a blog post from Les Green’s new blog, directed at a paper I recently uploaded to SSRN (although not really addressing my arguments), to give this blog the jolt needed to bring it back to life. So in the next few days, or weeks, I hope to post some thoughts, incidental to my paper, to Les Green’s response, and to jurisprudence more generally.