The Concept of Law

H.L.A. Hart's The Concept of Law was published in 1961. The edition you have is the 2d edition published in 1994. The main change in the second edition is the postscript edited and added at the end--it is mostly Hart's response to criticisms of his account by Ronald Dworkin, who we'll meet later.

The Concept of Law is the most consequential work of legal philosophy published in the last half century and almost everything done since is related to it in some way. It simply redefined the field.

The first two chapters are pretty straightforward: Hart lays out the questions the book is meant to address in the first chapter and in the second he constructs a kind of model account of classical legal positivism, what in the article we read he called the "command theory of law" (a modified version of Austin's basic view) that he then sets about to criticize in chapters three and four.

So what questions does he mean to answer?
1. How do law and legal obligation differ from, and how are they related to, orders backed by threats (Austin's view)? He sketches a version of this view in chapter 2 and then criticizes it in chapters 3 and 4.

2. How does legal obligation differ from, and how is it related to, moral obligation? They share a vocabularly (as we saw in Holmes), but don't seem to be the same thing (although that is what Hart thinks proponents of natural law claim. He discusses all this in detail in chapters 8 and 9.

3. What are rules and to what extent is law an affair of rules? This is Hart's own way of explaining law and he develops it in detail in chapters 5 and 6.

Hart also suggests his method for attacking these problems. He deploys techniques associated with the then somewhat new linguistic orientation in philosophy, that is, he analyzes law by analyzing the language of law.

In chapter two Hart reconstructs and modifies Austin's theory to produce a model of law as orders backed by threats. The basic idea is the "gunman writ large," but this is already seen as defective in that in most complex societies orders are not issued by the ruler to subjects face to face abd newly each time, but are part of a stable, continuing legal system. If we amend this view and add some necessary features we get this kind of model:

1. Laws have generality, i.e., they concern general classes of things and are addressed to general classes of persons;

2. Laws endure so that 'orders' are 'standing orders.';

3. There is a general habit of obedience on the part of subjects;

4. The legal system is supreme in its territory and independent from other legal systems.

So what we have here is a kind of ideal type of the "general orders backed by threats" model modified out of Austin's command theory. Hart will use this is his exemplar in the next two chapters. Some additional questions to think about in connection with chapter 3, where he bigins his criticism of this view:

1. What is his basic criticism of the model that sees laws as orders backed by threats?
2. How have defenders of the command theory tried to save it from such criticisms?
3. What role does the presence or absence of sanctions play in the command theory and in Hart's criticism of it?
4. Why does Hart discuss custom?

Hart v. Fuller

The late opening today costs us a meeting. To limit the damage, I am posting parts of my notes on Fuller's criticisms of Hart and some general questions/comments about the Hart-Fuller debate that will propel us into discussing Hart's book The Concept of Law.

The Main Issues
Hart’s main aim is to defend the separation thesis and detach it from the command theory of law. Fuller’s main concern is to argue that the separation thesis undermines any notion of fidelity to law and to defend the notion of the “internal morality of law.” One might say that Fuller poses against Hart’s revised positivism a revised natural law theory.

Fuller’s criticisms in more detail:
Hart seems concerned to prevent smuggling of “immoral morality” into legal interpretation, but Fuller questions his understanding of morality
i. Fuller suggests that ideas of coherence and logic keep out a lot of immoral morality
ii. Evil judges would more likely take refuge in letter than appeal to higher law
iii. Eschewing what maybe Hart fears: the Pope, i.e., dogmatic natural law view.

The essential connection between law and morality is in the “morality that makes law possible,” the “inner morality of law.” Traditional NL is about external morality (that is, substantive committments on specific moral issues like abortion, torture or euthanasia; but not Fuller. Fuller's internal morality is about necessary qualities of any legal system.
i. Order implies a kind of morality, at least moral respectability
ii. So lawmaking as an attempt at order does too and that context is essential to understanding law as law and fidelity thereto.
iii. So the connection between law and morality is that the enterprise of law, making it, enforcing it, interpreting it, requires certain things, e.g., that laws be clear, publicly announced, thgat they cohere with one another, that they pe possible to follow. These are moral aspects of law intelligibly related to law's purpose: the imposition of order on human communities.

F responds to H’s treatment of the Nazi era informer cases
i. Hart’s view is a dodge and suggests existence of two separate normative systems, law and morality, that are unconnected to one another. This undermines any coherent notion of legal duty
ii. There is a link here that would expose the wickedness of Nazi law, etc., the inner morality of law.
iii. F also thinks positivism did encourage Nazis because it smoothed there rise to power and suggested detachment of legal from moral duty

H’s core/penumbra distinction relies on a false “pointer” theory of language. Really interpretation takes place at level of sentences, paragraphs, pages, etc., and not just words. This requires attention to overall structure that in turn is inevitable purposive and connected to internal morality.

So: once again:
Hart wants to allay fears of those who reject positivism by rejecting “command” theory and defending separation thesis against charges of moral relativism, etc.
Fuller wants to reject Hart’s separation thesis, but not by defending traditional natural law or “higher law” (the external morality of law), but by defending internal morality of law—this doesn’t require us to buy into dubious content of traditional natural law (=Catholic NL theory—cf. Hart, 623).
Modified and revised positivism v. modified and revised NL.

Some Questions
In re Hart:

• Hart admits the relevance of natural law understood in a certain way: the minimum content related to survival. Moreover, in place of the command theory he has a view of rules separate from command as such. What kinds of rules? What is the context of these rules and does that provide the necessary intelligibility for legal purposes? What is the root of them? Is there a connection with something else there?
• Does the minimal natural law provide enough intelligibility? Or does it by contrast admit too much?
• H denies that positivism is committed to moral relativism, but he also accepts the reality of a plurality of ultimately incommensurable moral values (e.g., justice v. the rule of law, in the Nazi informer cases). Is this coherent?

In re Fuller:

• Fidelity to law requires a connection between law and morality and F takes that to be the internal morality of law. Is the “internal morality” enough? F eschews more fulsome (traditional) account of natural law or higher law. Is this wise? Hart suggests that the norms necessary for the rule of law don’t necessarily need to be moral and a system that had the rule of law could be immoral in the larger sense (South Africa), so does F need more than the internal morality?
• Is his “purposive” view of law too vague? Does one need to say more about specific purposes or does this trespass into the “external” morality of law? If so, does it suggest that F’s theory is inadequate?
• Are Fuller’s criticisms of Hart’s theory of language accurate, adequate?

With respect to both

• Hart thinks natural law theory requires the counter intuitive thesis that an unjust law is no law at all; Fuller mostly ignores this issue. How important is it and is there a way to understand that slogan that makes sense?
• Both Hart and Fuller are nervous about traditional natural law because it seems to require too much moral agreement among people. Does it? Fuller in particular worries that natural law is often simply a rival system of positivism. Is this accurate? Is there a more traditional natural law view that answers these dilemmas and better explains the intelligibility of law and legal systems than either of these accounts?

Georgetown Conference

It's taken me a while to start posting here, but I'm finally starting. The point of this is to add commemnts and further information on topics discussed in class. One way to think of it is footnotes; another way might be marginalia. I'll also add other information relative to or of interest to the class.

This Friday there is a very interesting program on natural rights and the American regime at Georgetown sponsored by the Tocqueville Forum, which always sponsors very good things. The program starts in the morning (during class), but there are interesting things scheduled in the afternoon that you might wish to attend. Here is the basic information.

Natural Rights and the American Constitutional Experience
Friday, January 30, 2009, 9:30am – 3:30pm Copley Formal Lounge
The Declaration of Independence states that the rights to life, liberty and the pursuit of happiness are self-evident, and today, the use of rights language is dominant in U.S. political rhetoric and courts. The U.S. seems to be a regime based on rights. In this conference we bring together some of the best thinkers to discuss the idea of natural rights in relation to our American Constitution and way of life. They will address such pressing questions that are at the forefront of our American political process: What is the origin of natural rights and how are they related to the rights in the Constitution? Was the Constitution established to protect natural rights, create them, or promote natural law? How should Supreme Court Judges view natural rights in relation to their decision making on Constitutional cases?

Schedule9:30am-11:00am: The Origin and Nature of Natural Rights and the U.S. ConstitutionBrian Tierney, Cornell University: Sources of the American Idea of Natural Rights: Some Competing NarrativesRobert Kraynak, Colgate University: Ordered Liberty and the American Founding: Natural Rights in Cultural ContextRespondent: Steven Brust, Georgetown University

11:15am – 12:45pm: Perspectives on the Constitution, Natural Rights, and Natural LawRobert George, Princeton University: What is Natural Law?Randy Barnett, Georgetown Law School: Was Lochner Right? Natural Rights and the Fourteenth AmendmentModerator: Patrick Deneen, Georgetown University

12:45pm-2:00pm: Lunch with Keynote AddressMichael Novak, American Enterprise Institute (begins at 1:00pm): Belief in a Certain Type of God as a Foundation of the Natural Right of ConscienceRSVP required for Lunch

2:00pm – 3:30pm: Natural Rights, the Bill of Rights and Judges: Theory and PracticeChristopher Wolfe, McInerny Center for Thomistic Studies: Natural Rights, the Constitution, and Judicial ReviewCharles Lugosi, Ave Maria Law School: Why Judges Should Understand the True Nature of the Rule of Law to Effectively Interpret the Constitution to Protect the Rights of All Persons.Respondent: Phillip Muñoz, Tufts University

Please RSVP by Wednesday to mailto:tocquevilleforum@georgetown.edu?subject=RSVP%20Natural%20Rights%20Conference or (202) 687-8501. Join us for as much of the conference as you are able. RSVP is required for the Lunch and Keynote Address.

Sponsored by the Tocqueville Forum on the Roots of American Democracy.
Part of the Department of Government at Georgetown University
Visit http://www.tocquevilleforum.org/ for more information.