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.