Positivism and the internal point of view

Law and Philosophy

Volumn 17, Issue 5-6, 1998, Pages 597-625

  Holton, Richard ^a  

^a AUSTRALIAN NATIONAL UNIVERSITY   (Australia)

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EID: 0032261059     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.2307/3505190     Document Type: Article

References (64)

1. See for instance Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978), pp. 62ff. The position is sometimes attributed to Raz, although on rather shaky grounds; see below n. 7.
2. Roger A. Shiner, Norm and Nature: The Movements of Legal Thought (Oxford: Clarendon Press, 1992), p. 70.
3. H. L. A. Hart, "Comment," in R. Gavison (ed.), Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987), pp. 37-42 at p. 39; and "Postscript," in The Concept of Law, Second Edition (Oxford: Clarendon Press, 1994), pp. 238-276 at p. 234.
4. H. L. A. Hart, "Comment," in R. Gavison (ed.), Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987), pp. 37-42 at p. 39; and "Postscript," in The Concept of Law, Second Edition (Oxford: Clarendon Press, 1994), pp. 238-276 at p. 234.
5. J. Goldsworthy, "The Self-Destruction of Legal Positivism," Oxford Journal of Legal Studies 10 (1990), pp. 449-486.
6. Michael Stocker, "The Schizophrenia of Modern Ethical Theories," The Journal of Philosophy 73 (1976), pp. 453-465.
7. G. Postema, "The Normativity of Law," in R. Gavison (ed.), Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987), pp. 81-104.
8. This is very much the position attributed to Raz by Hart in Essays on Bentham (Oxford: Clarendon Press, 1982), p. 153. However, in each of the three works that Hart cites on that page, Raz explicitly denies that the officials need think that they are morally obliged to obey the law. Thus in Practical Reason and Norms (London: Hutchinson, 1975), p. 148, he writes, "it is not only logically possible but also not uncommon for an official of the system to follow its rules of recognition without regarding them as morally justified"; in The Authority of Law (Oxford: Clarendon Press, 1979), p. 155, he writes "It seems to me that Hart is right in saying that judges and all other officials regularly involved in applying and enforcing the law do accept and follow it. They may have reservations concerning the moral justifiability of the law but nevertheless they accept and apply it for their own reasons (salary, social involvement, etc.) or for no reason at all. . . . When they state the legal validity of a rule they do mean to assert its binding force, though not necessarily its moral force"; and in The Concept of a Legal System, Second Edition (Oxford: Clarendon Press, 1980), p. 235 he writes "Acceptance here does not impart moral approbation of the rule, nor even belief that there are adequate moral reasons for obeying it. Acceptance could be for moral, prudential or any other reasons, or for no reason at all. All it means is belief that the agent should follow the rule according to its terms." Surprisingly, in reviewing Hart's book, Raz does not object to Hart's misattribution, but rather goes on to accept the position attributed to him; see "Hart on Moral Rights and Legal Duties," Oxford Journal of Legal Studies 4 (1984), pp. 123-131, at p. 130. The other work of Raz's which Hart cites, and in which Raz does come close to endorsing the position which Hart attributes to him, is "The Purity of the Pure Theory," Revue internationale de philosophie 35 (1981), pp. 441-459. However, there the claim is the different one (which I think mistaken) that committed statements of legal obligation are statements of moral obligation.
9. This is very much the position attributed to Raz by Hart in Essays on Bentham (Oxford: Clarendon Press, 1982), p. 153. However, in each of the three works that Hart cites on that page, Raz explicitly denies that the officials need think that they are morally obliged to obey the law. Thus in Practical Reason and Norms (London: Hutchinson, 1975), p. 148, he writes, "it is not only logically possible but also not uncommon for an official of the system to follow its rules of recognition without regarding them as morally justified"; in The Authority of Law (Oxford: Clarendon Press, 1979), p. 155, he writes "It seems to me that Hart is right in saying that judges and all other officials regularly involved in applying and enforcing the law do accept and follow it. They may have reservations concerning the moral justifiability of the law but nevertheless they accept and apply it for their own reasons (salary, social involvement, etc.) or for no reason at all. . . . When they state the legal validity of a rule they do mean to assert its binding force, though not necessarily its moral force"; and in The Concept of a Legal System, Second Edition (Oxford: Clarendon Press, 1980), p. 235 he writes "Acceptance here does not impart moral approbation of the rule, nor even belief that there are adequate moral reasons for obeying it. Acceptance could be for moral, prudential or any other reasons, or for no reason at all. All it means is belief that the agent should follow the rule according to its terms." Surprisingly, in reviewing Hart's book, Raz does not object to Hart's misattribution, but rather goes on to accept the position attributed to him; see "Hart on Moral Rights and Legal Duties," Oxford Journal of Legal Studies 4 (1984), pp. 123-131, at p. 130. The other work of Raz's which Hart cites, and in which Raz does come close to endorsing the position which Hart attributes to him, is "The Purity of the Pure Theory," Revue internationale de philosophie 35 (1981), pp. 441-459. However, there the claim is the different one (which I think mistaken) that committed statements of legal obligation are statements of moral obligation.
10. This is very much the position attributed to Raz by Hart in Essays on Bentham (Oxford: Clarendon Press, 1982), p. 153. However, in each of the three works that Hart cites on that page, Raz explicitly denies that the officials need think that they are morally obliged to obey the law. Thus in Practical Reason and Norms (London: Hutchinson, 1975), p. 148, he writes, "it is not only logically possible but also not uncommon for an official of the system to follow its rules of recognition without regarding them as morally justified"; in The Authority of Law (Oxford: Clarendon Press, 1979), p. 155, he writes "It seems to me that Hart is right in saying that judges and all other officials regularly involved in applying and enforcing the law do accept and follow it. They may have reservations concerning the moral justifiability of the law but nevertheless they accept and apply it for their own reasons (salary, social involvement, etc.) or for no reason at all. . . . When they state the legal validity of a rule they do mean to assert its binding force, though not necessarily its moral force"; and in The Concept of a Legal System, Second Edition (Oxford: Clarendon Press, 1980), p. 235 he writes "Acceptance here does not impart moral approbation of the rule, nor even belief that there are adequate moral reasons for obeying it. Acceptance could be for moral, prudential or any other reasons, or for no reason at all. All it means is belief that the agent should follow the rule according to its terms." Surprisingly, in reviewing Hart's book, Raz does not object to Hart's misattribution, but rather goes on to accept the position attributed to him; see "Hart on Moral Rights and Legal Duties," Oxford Journal of Legal Studies 4 (1984), pp. 123-131, at p. 130. The other work of Raz's which Hart cites, and in which Raz does come close to endorsing the position which Hart attributes to him, is "The Purity of the Pure Theory," Revue internationale de philosophie 35 (1981), pp. 441-459. However, there the claim is the different one (which I think mistaken) that committed statements of legal obligation are statements of moral obligation.
11. This is very much the position attributed to Raz by Hart in Essays on Bentham (Oxford: Clarendon Press, 1982), p. 153. However, in each of the three works that Hart cites on that page, Raz explicitly denies that the officials need think that they are morally obliged to obey the law. Thus in Practical Reason and Norms (London: Hutchinson, 1975), p. 148, he writes, "it is not only logically possible but also not uncommon for an official of the system to follow its rules of recognition without regarding them as morally justified"; in The Authority of Law (Oxford: Clarendon Press, 1979), p. 155, he writes "It seems to me that Hart is right in saying that judges and all other officials regularly involved in applying and enforcing the law do accept and follow it. They may have reservations concerning the moral justifiability of the law but nevertheless they accept and apply it for their own reasons (salary, social involvement, etc.) or for no reason at all. . . . When they state the legal validity of a rule they do mean to assert its binding force, though not necessarily its moral force"; and in The Concept of a Legal System, Second Edition (Oxford: Clarendon Press, 1980), p. 235 he writes "Acceptance here does not impart moral approbation of the rule, nor even belief that there are adequate moral reasons for obeying it. Acceptance could be for moral, prudential or any other reasons, or for no reason at all. All it means is belief that the agent should follow the rule according to its terms." Surprisingly, in reviewing Hart's book, Raz does not object to Hart's misattribution, but rather goes on to accept the position attributed to him; see "Hart on Moral Rights and Legal Duties," Oxford Journal of Legal Studies 4 (1984), pp. 123-131, at p. 130. The other work of Raz's which Hart cites, and in which Raz does come close to endorsing the position which Hart attributes to him, is "The Purity of the Pure Theory," Revue internationale de philosophie 35 (1981), pp. 441-459. However, there the claim is the different one (which I think mistaken) that committed statements of legal obligation are statements of moral obligation.
12. This is very much the position attributed to Raz by Hart in Essays on Bentham (Oxford: Clarendon Press, 1982), p. 153. However, in each of the three works that Hart cites on that page, Raz explicitly denies that the officials need think that they are morally obliged to obey the law. Thus in Practical Reason and Norms (London: Hutchinson, 1975), p. 148, he writes, "it is not only logically possible but also not uncommon for an official of the system to follow its rules of recognition without regarding them as morally justified"; in The Authority of Law (Oxford: Clarendon Press, 1979), p. 155, he writes "It seems to me that Hart is right in saying that judges and all other officials regularly involved in applying and enforcing the law do accept and follow it. They may have reservations concerning the moral justifiability of the law but nevertheless they accept and apply it for their own reasons (salary, social involvement, etc.) or for no reason at all. . . . When they state the legal validity of a rule they do mean to assert its binding force, though not necessarily its moral force"; and in The Concept of a Legal System, Second Edition (Oxford: Clarendon Press, 1980), p. 235 he writes "Acceptance here does not impart moral approbation of the rule, nor even belief that there are adequate moral reasons for obeying it. Acceptance could be for moral, prudential or any other reasons, or for no reason at all. All it means is belief that the agent should follow the rule according to its terms." Surprisingly, in reviewing Hart's book, Raz does not object to Hart's misattribution, but rather goes on to accept the position attributed to him; see "Hart on Moral Rights and Legal Duties," Oxford Journal of Legal Studies 4 (1984), pp. 123-131, at p. 130. The other work of Raz's which Hart cites, and in which Raz does come close to endorsing the position which Hart attributes to him, is "The Purity of the Pure Theory," Revue internationale de philosophie 35 (1981), pp. 441-459. However, there the claim is the different one (which I think mistaken) that committed statements of legal obligation are statements of moral obligation.
13. This is very much the position attributed to Raz by Hart in Essays on Bentham (Oxford: Clarendon Press, 1982), p. 153. However, in each of the three works that Hart cites on that page, Raz explicitly denies that the officials need think that they are morally obliged to obey the law. Thus in Practical Reason and Norms (London: Hutchinson, 1975), p. 148, he writes, "it is not only logically possible but also not uncommon for an official of the system to follow its rules of recognition without regarding them as morally justified"; in The Authority of Law (Oxford: Clarendon Press, 1979), p. 155, he writes "It seems to me that Hart is right in saying that judges and all other officials regularly involved in applying and enforcing the law do accept and follow it. They may have reservations concerning the moral justifiability of the law but nevertheless they accept and apply it for their own reasons (salary, social involvement, etc.) or for no reason at all. . . . When they state the legal validity of a rule they do mean to assert its binding force, though not necessarily its moral force"; and in The Concept of a Legal System, Second Edition (Oxford: Clarendon Press, 1980), p. 235 he writes "Acceptance here does not impart moral approbation of the rule, nor even belief that there are adequate moral reasons for obeying it. Acceptance could be for moral, prudential or any other reasons, or for no reason at all. All it means is belief that the agent should follow the rule according to its terms." Surprisingly, in reviewing Hart's book, Raz does not object to Hart's misattribution, but rather goes on to accept the position attributed to him; see "Hart on Moral Rights and Legal Duties," Oxford Journal of Legal Studies 4 (1984), pp. 123-131, at p. 130. The other work of Raz's which Hart cites, and in which Raz does come close to endorsing the position which Hart attributes to him, is "The Purity of the Pure Theory," Revue internationale de philosophie 35 (1981), pp. 441-459. However, there the claim is the different one (which I think mistaken) that committed statements of legal obligation are statements of moral obligation.
14. The Concept of Law, p. 113; cf. p. 88. I think that if the secondary rules are accepted, then any primary rules that follow from them should themselves be accepted; that is part of what it is to accept the secondary rules. But this is controversial.
15. Hart raised many objections to the gunman model, and to Austin's theory which he saw as an elaboration of it; I have focussed exclusively on what Hart saw as "the root cause" of the failure of such accounts (The Concept of Law p. 78), and hence as the basis of "the fundamental objection" to them (p. 82). Hart's discussion of acceptance is at times difficult to follow, since he tends to run together his substantial account with the methodological thesis that is needed to underpin it. Against the behaviourists, Hart insists that to understand a legal system one must make reference to the attitudes of the participants, and not just to their behaviour (see esp. pp. 87-88). But to make that methodological point is not yet to say that we only get a legal system where the attitude is that of acceptance.
16. The Concept of Law, p. 56.
17. Ibid.
18. In what follows I shall stick with the belief talk; non-cognitivists will simply want to hear it with inverted commas. Note that Hart's claim in the "Postscript" (p. 255) that acceptance should be seen as a disposition is quite compatible with seeing it as a belief, on the widespread view that beliefs are (at least partly) dispositions.
19. The Concept of Law, p. 112. See also p. 88, although this is one point where the discussion is confusing, since Hart tends to run together the position of the person who simply does not accept the law (perhaps because they think it totally unjustified), with that of the behaviourist who talks only in terms of 'observable regularities of behaviour'.
20. T. M. Scanlon, "Contractualism and Utilitarianism" in A. Sen and B. Williams (eds.), Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982), pp. 103-128, at p. 116. For further discussion of this and related ideas see G. Gaus, Value and Justification (Cambridge: Cambridge University Press, 1990) and Justificatory Liberalism (New York: Oxford University Press, 1996).
21. T. M. Scanlon, "Contractualism and Utilitarianism" in A. Sen and B. Williams (eds.), Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982), pp. 103-128, at p. 116. For further discussion of this and related ideas see G. Gaus, Value and Justification (Cambridge: Cambridge University Press, 1990) and Justificatory Liberalism (New York: Oxford University Press, 1996).
22. T. M. Scanlon, "Contractualism and Utilitarianism" in A. Sen and B. Williams (eds.), Utilitarianism and Beyond (Cambridge: Cambridge University Press, 1982), pp. 103-128, at p. 116. For further discussion of this and related ideas see G. Gaus, Value and Justification (Cambridge: Cambridge University Press, 1990) and Justificatory Liberalism (New York: Oxford University Press, 1996).
23. The Concept of Law, p. 199.
24. Ibid., pp. 198-199.
25. If the Humean theory of motivation is right, we also need to advert to a desire to get the full motivational story: in this case perhaps a desire to hit anyone who broke into the flat. But the desire is at least part of the motivating reason, and I'll go on talking just in terms of desires. The question of whether moral desires are motivating on their own is a highly controversial one which we need not address here. Nor need we address the tricky question of whether motivating reasons are themselves causal.
26. Thomas Nagel, The Possibility of Altruism (Oxford: Clarendon Press, 1970), p. 15; Michael Smith, The Moral Problem (Oxford: Blackwell, 1994), pp. 94-98. Nagel and Smith actually use the expression in slightly different ways. For Nagel the motivating reason is the content of the mental state; for Smith it is the having of the mental state. Since nothing turns on it here, I fudge this distinction.
27. Thomas Nagel, The Possibility of Altruism (Oxford: Clarendon Press, 1970), p. 15; Michael Smith, The Moral Problem (Oxford: Blackwell, 1994), pp. 94-98. Nagel and Smith actually use the expression in slightly different ways. For Nagel the motivating reason is the content of the mental state; for Smith it is the having of the mental state. Since nothing turns on it here, I fudge this distinction.
28. A distinction between something like motivating and normative reasons was made in the 18th Century by Hutcheson; he called them "exciting" and "justifying" reasons. See Francis Hutcheson, Illustrations on the Moral Sense, B. Peach (ed.) (Cambridge: Harvard University Press, 1971, 1728), p. 121.
29. The three-fold distinction made here is the same as that made in Stephen Darwall, Impartial Reason (Ithaca: Cornell University Press, 1983) pp. 28-32.
30. For a useful discussion of the issues, and some further distinctions which can, I think, be safely elided here, see G. Cullity and B. Gaut, 'Introduction' to Ethics and Practical Reason (Oxford: Clarendon Press, 1997).
31. Hart himself returns to this argument on p. 257 of the 1994 "Postscript" to The Concept of Law: "But when the question arises as to why those who have accepted conventional rules as a guide to their behaviour or as standards of criticism have done so I see no reason for selecting from the many answers to be given a belief in the moral justification of rules as the sole possible or adequate answer. For some rules may be accepted simply out of deference to tradition or the wish to identify with others or in the belief that society knows best what is to the advantage of individuals. These attitudes may coexist with a more or less vivid realization that the rules are morally objectionable". The passage is vulnerable to the same objection as made in the text. However, Hart hints here at another argument when he says that acceptance of the rules "may co-exist with a more or less vivid realization that the rules are morally objectionable" (my italics). I have argued that Hart hasn't shown that someone can use the law as a standard of behaviour whilst clearly thinking that the law is morally unjustified. But perhaps the idea is that someone who has a mere inkling that the law is morally unjustified can do so. However, this doesn't show that the internal point of view is not a moral point of view; all it shows is that such a person is morally self-deceived. It is all too familiar that someone can hold that a position is morally justified (especially if it is in their interest) whilst at the same time having an inkling that it is not.
32. Hart himself returns to this argument on p. 257 of the 1994 "Postscript" to The Concept of Law: "But when the question arises as to why those who have accepted conventional rules as a guide to their behaviour or as standards of criticism have done so I see no reason for selecting from the many answers to be given a belief in the moral justification of rules as the sole possible or adequate answer. For some rules may be accepted simply out of deference to tradition or the wish to identify with others or in the belief that society knows best what is to the advantage of individuals. These attitudes may coexist with a more or less vivid realization that the rules are morally objectionable". The passage is vulnerable to the same objection as made in the text. However, Hart hints here at another argument when he says that acceptance of the rules "may co-exist with a more or less vivid realization that the rules are morally objectionable" (my italics). I have argued that Hart hasn't shown that someone can use the law as a standard of behaviour whilst clearly thinking that the law is morally unjustified. But perhaps the idea is that someone who has a mere inkling that the law is morally unjustified can do so. However, this doesn't show that the internal point of view is not a moral point of view; all it shows is that such a person is morally self-deceived. It is all too familiar that someone can hold that a position is morally justified (especially if it is in their interest) whilst at the same time having an inkling that it is not.
33. One idea, which has been suggested to me by several people, is that Hart could be read as characterizing the internal point of view as involving belief in a kind of conditional justification: the belief that if one accepts the authority of the law, then one is justifiably criticized for departing from it. Were this a correct characterization of the internal point of view, then perhaps it would not amount to a moral point of view. But it cannot be correct, for it will not do to distinguish insiders from outsiders. Outsiders too can believe in this sort of conditional justification. Where they differ from insiders is in rejecting the idea that acceptance of the law is justified all things considered.
34. Gerald Postema gives an argument which has the consequence that this condition would follow from the constraint: he suggests that, at least in the absence of self-deception, officials can only be convinced of the rightness of the law if they think that their subjects are convinced of its rightness; see "The Normativity of Law," pp. 92-93. I suspect that this underestimates the capacity of those convinced of their own moral insight to enforce it in the face of disagreement.
35. H. L. A. Hart, "Theory and Definition in Jurisprudence," Proceedings of the Aristotelian Society Supplementary Volume 29 (1955), pp. 239-264, at pp. 251-252.
36. Raz discusses the notion of systemic justification in The Authority of Law Ch. 8. For a clear attempt to argue for the systemic justifiability of law, in a broadly positivist spirit, see Gerald Postema, "Coordination and Convention at the Foundations of Law," Journal of Legal Studies 11 (1982), pp. 165-203.
37. Raz discusses the notion of systemic justification in The Authority of Law Ch. 8. For a clear attempt to argue for the systemic justifiability of law, in a broadly positivist spirit, see Gerald Postema, "Coordination and Convention at the Foundations of Law," Journal of Legal Studies 11 (1982), pp. 165-203.
38. The first half of this is roughly what Lyons calls the "expanded separation thesis", which he sees as capturing the true spirit of positivism; he adds the requirement that the law is subject to moral appraisal David Lyons, "Moral Aspects of Legal Theory," in Moral Aspects of Legal Theory (Cambridge: Cambridge University Press, 1982), pp. 64-101, at p. 100.
39. See his "Postscript," to The Concept of Law, Second Edition, at pp. 242-243; see also Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978), p. 62. As Hart goes on to point out, it is arguable that theorists have to have moral beliefs of their own in order to ascribe moral beliefs to others. But they surely don't have to have the same moral beliefs. So the constraint does not thereby entail that the theorist will be bound to think that any legal system they can identify is morally binding.
40. See his "Postscript," to The Concept of Law, Second Edition, at pp. 242- 243; see also Neil MacCormick, Legal Reasoning and Legal Theory (Oxford: Clarendon Press, 1978), p. 62. As Hart goes on to point out, it is arguable that theorists have to have moral beliefs of their own in order to ascribe moral beliefs to others. But they surely don't have to have the same moral beliefs. So the constraint does not thereby entail that the theorist will be bound to think that any legal system they can identify is morally binding.
41. J. Raz, "The Purity of the Pure Theory," Revue internationale de philosophie 35 (1981), pp. 441-459, at p. 455.
42. The notion of pragmatic implicature comes from Grice; see Paul Grice, Studies in the Way of Words (Cambridge, Massachusetts: Harvard University Press, 1989), Ch. 2. use it here in a broader sense than Grice's account would licence. (Readers will notice many differences between the examples I give, that, in a fuller presentation, would be worthy of discussion.) For a broader account of implicature, that would, I think, licence the use made here, see Dan Sperber, and Deirdre Wilson, Relevance (Oxford: Basil Blackwell, 1986), and, for a simpler presentation of the same account, Diane Blakemore, Understanding Utterances (Oxford: Basil Blackwell, 1992). A claim similar to the one made here is made in G. Baker, "Defeasibility and Meaning," in P. Hacker and J. Raz (eds.), Law, Morality, and Society (Oxford: Clarendon Press, 1977), pp. 26-57, at pp. 41-42; and in David Lyons, "Comment on Postema," in Ruth Gavison (ed.), Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987), pp. 114-126, at pp. 122-124. Lyons' account has been criticized in Roger A. Shiner, Norm and Nature: The Movements of Legal Thought (Oxford: Clarendon Press, 1992) pp. 139-141. The main force of Shiner's criticism is that Lyons has ignored various lessons that he should have learnt from Austin, in particular the distinction between locutionary meaning and illocutionary force. But the Gricean point that Lyons makes is quite compatible with these Austinian distinctions. The idea is that in giving a judgment a judge neither performs the locutionary act of uttering a sentence that entails that they believe the judgment is morally correct; nor performs the illocutionary act of asserting that they have such a belief. Rather they have implicated that they have the belief. Many of Shiner's criticisms seem based upon the idea that normative force should be identified as a form of illocutionary force. But this is simply to equivocate on the notion of force, and as a substantive claim no such identification should be made. Beliefs, as well as speech acts, can have normative force, but they have no illocutionary force. Austin himself was in fact very suspicious of the notion of the normative; see How to do things with Words (Oxford: Clarendon Press, 1962), p. 149.
43. The notion of pragmatic implicature comes from Grice; see Paul Grice, Studies in the Way of Words (Cambridge, Massachusetts: Harvard University Press, 1989), Ch. 2. use it here in a broader sense than Grice's account would licence. (Readers will notice many differences between the examples I give, that, in a fuller presentation, would be worthy of discussion.) For a broader account of implicature, that would, I think, licence the use made here, see Dan Sperber, and Deirdre Wilson, Relevance (Oxford: Basil Blackwell, 1986), and, for a simpler presentation of the same account, Diane Blakemore, Understanding Utterances (Oxford: Basil Blackwell, 1992). A claim similar to the one made here is made in G. Baker, "Defeasibility and Meaning," in P. Hacker and J. Raz (eds.), Law, Morality, and Society (Oxford: Clarendon Press, 1977), pp. 26-57, at pp. 41-42; and in David Lyons, "Comment on Postema," in Ruth Gavison (ed.), Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987), pp. 114-126, at pp. 122-124. Lyons' account has been criticized in Roger A. Shiner, Norm and Nature: The Movements of Legal Thought (Oxford: Clarendon Press, 1992) pp. 139-141. The main force of Shiner's criticism is that Lyons has ignored various lessons that he should have learnt from Austin, in particular the distinction between locutionary meaning and illocutionary force. But the Gricean point that Lyons makes is quite compatible with these Austinian distinctions. The idea is that in giving a judgment a judge neither performs the locutionary act of uttering a sentence that entails that they believe the judgment is morally correct; nor performs the illocutionary act of asserting that they have such a belief. Rather they have implicated that they have the belief. Many of Shiner's criticisms seem based upon the idea that normative force should be identified as a form of illocutionary force. But this is simply to equivocate on the notion of force, and as a substantive claim no such identification should be made. Beliefs, as well as speech acts, can have normative force, but they have no illocutionary force. Austin himself was in fact very suspicious of the notion of the normative; see How to do things with Words (Oxford: Clarendon Press, 1962), p. 149.
44. The notion of pragmatic implicature comes from Grice; see Paul Grice, Studies in the Way of Words (Cambridge, Massachusetts: Harvard University Press, 1989), Ch. 2. use it here in a broader sense than Grice's account would licence. (Readers will notice many differences between the examples I give, that, in a fuller presentation, would be worthy of discussion.) For a broader account of implicature, that would, I think, licence the use made here, see Dan Sperber, and Deirdre Wilson, Relevance (Oxford: Basil Blackwell, 1986), and, for a simpler presentation of the same account, Diane Blakemore, Understanding Utterances (Oxford: Basil Blackwell, 1992). A claim similar to the one made here is made in G. Baker, "Defeasibility and Meaning," in P. Hacker and J. Raz (eds.), Law, Morality, and Society (Oxford: Clarendon Press, 1977), pp. 26-57, at pp. 41-42; and in David Lyons, "Comment on Postema," in Ruth Gavison (ed.), Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987), pp. 114-126, at pp. 122-124. Lyons' account has been criticized in Roger A. Shiner, Norm and Nature: The Movements of Legal Thought (Oxford: Clarendon Press, 1992) pp. 139-141. The main force of Shiner's criticism is that Lyons has ignored various lessons that he should have learnt from Austin, in particular the distinction between locutionary meaning and illocutionary force. But the Gricean point that Lyons makes is quite compatible with these Austinian distinctions. The idea is that in giving a judgment a judge neither performs the locutionary act of uttering a sentence that entails that they believe the judgment is morally correct; nor performs the illocutionary act of asserting that they have such a belief. Rather they have implicated that they have the belief. Many of Shiner's criticisms seem based upon the idea that normative force should be identified as a form of illocutionary force. But this is simply to equivocate on the notion of force, and as a substantive claim no such identification should be made. Beliefs, as well as speech acts, can have normative force, but they have no illocutionary force. Austin himself was in fact very suspicious of the notion of the normative; see How to do things with Words (Oxford: Clarendon Press, 1962), p. 149.
45. The notion of pragmatic implicature comes from Grice; see Paul Grice, Studies in the Way of Words (Cambridge, Massachusetts: Harvard University Press, 1989), Ch. 2. use it here in a broader sense than Grice's account would licence. (Readers will notice many differences between the examples I give, that, in a fuller presentation, would be worthy of discussion.) For a broader account of implicature, that would, I think, licence the use made here, see Dan Sperber, and Deirdre Wilson, Relevance (Oxford: Basil Blackwell, 1986), and, for a simpler presentation of the same account, Diane Blakemore, Understanding Utterances (Oxford: Basil Blackwell, 1992). A claim similar to the one made here is made in G. Baker, "Defeasibility and Meaning," in P. Hacker and J. Raz (eds.), Law, Morality, and Society (Oxford: Clarendon Press, 1977), pp. 26-57, at pp. 41-42; and in David Lyons, "Comment on Postema," in Ruth Gavison (ed.), Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987), pp. 114-126, at pp. 122-124. Lyons' account has been criticized in Roger A. Shiner, Norm and Nature: The Movements of Legal Thought (Oxford: Clarendon Press, 1992) pp. 139-141. The main force of Shiner's criticism is that Lyons has ignored various lessons that he should have learnt from Austin, in particular the distinction between locutionary meaning and illocutionary force. But the Gricean point that Lyons makes is quite compatible with these Austinian distinctions. The idea is that in giving a judgment a judge neither performs the locutionary act of uttering a sentence that entails that they believe the judgment is morally correct; nor performs the illocutionary act of asserting that they have such a belief. Rather they have implicated that they have the belief. Many of Shiner's criticisms seem based upon the idea that normative force should be identified as a form of illocutionary force. But this is simply to equivocate on the notion of force, and as a substantive claim no such identification should be made. Beliefs, as well as speech acts, can have normative force, but they have no illocutionary force. Austin himself was in fact very suspicious of the notion of the normative; see How to do things with Words (Oxford: Clarendon Press, 1962), p. 149.
46. The notion of pragmatic implicature comes from Grice; see Paul Grice, Studies in the Way of Words (Cambridge, Massachusetts: Harvard University Press, 1989), Ch. 2. use it here in a broader sense than Grice's account would licence. (Readers will notice many differences between the examples I give, that, in a fuller presentation, would be worthy of discussion.) For a broader account of implicature, that would, I think, licence the use made here, see Dan Sperber, and Deirdre Wilson, Relevance (Oxford: Basil Blackwell, 1986), and, for a simpler presentation of the same account, Diane Blakemore, Understanding Utterances (Oxford: Basil Blackwell, 1992). A claim similar to the one made here is made in G. Baker, "Defeasibility and Meaning," in P. Hacker and J. Raz (eds.), Law, Morality, and Society (Oxford: Clarendon Press, 1977), pp. 26-57, at pp. 41-42; and in David Lyons, "Comment on Postema," in Ruth Gavison (ed.), Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987), pp. 114-126, at pp. 122-124. Lyons' account has been criticized in Roger A. Shiner, Norm and Nature: The Movements of Legal Thought (Oxford: Clarendon Press, 1992) pp. 139-141. The main force of Shiner's criticism is that Lyons has ignored various lessons that he should have learnt from Austin, in particular the distinction between locutionary meaning and illocutionary force. But the Gricean point that Lyons makes is quite compatible with these Austinian distinctions. The idea is that in giving a judgment a judge neither performs the locutionary act of uttering a sentence that entails that they believe the judgment is morally correct; nor performs the illocutionary act of asserting that they have such a belief. Rather they have implicated that they have the belief. Many of Shiner's criticisms seem based upon the idea that normative force should be identified as a form of illocutionary force. But this is simply to equivocate on the notion of force, and as a substantive claim no such identification should be made. Beliefs, as well as speech acts, can have normative force, but they have no illocutionary force. Austin himself was in fact very suspicious of the notion of the normative; see How to do things with Words (Oxford: Clarendon Press, 1962), p. 149.
47. The notion of pragmatic implicature comes from Grice; see Paul Grice, Studies in the Way of Words (Cambridge, Massachusetts: Harvard University Press, 1989), Ch. 2. use it here in a broader sense than Grice's account would licence. (Readers will notice many differences between the examples I give, that, in a fuller presentation, would be worthy of discussion.) For a broader account of implicature, that would, I think, licence the use made here, see Dan Sperber, and Deirdre Wilson, Relevance (Oxford: Basil Blackwell, 1986), and, for a simpler presentation of the same account, Diane Blakemore, Understanding Utterances (Oxford: Basil Blackwell, 1992). A claim similar to the one made here is made in G. Baker, "Defeasibility and Meaning," in P. Hacker and J. Raz (eds.), Law, Morality, and Society (Oxford: Clarendon Press, 1977), pp. 26-57, at pp. 41-42; and in David Lyons, "Comment on Postema," in Ruth Gavison (ed.), Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987), pp. 114-126, at pp. 122-124. Lyons' account has been criticized in Roger A. Shiner, Norm and Nature: The Movements of Legal Thought (Oxford: Clarendon Press, 1992) pp. 139-141. The main force of Shiner's criticism is that Lyons has ignored various lessons that he should have learnt from Austin, in particular the distinction between locutionary meaning and illocutionary force. But the Gricean point that Lyons makes is quite compatible with these Austinian distinctions. The idea is that in giving a judgment a judge neither performs the locutionary act of uttering a sentence that entails that they believe the judgment is morally correct; nor performs the illocutionary act of asserting that they have such a belief. Rather they have implicated that they have the belief. Many of Shiner's criticisms seem based upon the idea that normative force should be identified as a form of illocutionary force. But this is simply to equivocate on the notion of force, and as a substantive claim no such identification should be made. Beliefs, as well as speech acts, can have normative force, but they have no illocutionary force. Austin himself was in fact very suspicious of the notion of the normative; see How to do things with Words (Oxford: Clarendon Press, 1962), p. 149.
48. The notion of pragmatic implicature comes from Grice; see Paul Grice, Studies in the Way of Words (Cambridge, Massachusetts: Harvard University Press, 1989), Ch. 2. use it here in a broader sense than Grice's account would licence. (Readers will notice many differences between the examples I give, that, in a fuller presentation, would be worthy of discussion.) For a broader account of implicature, that would, I think, licence the use made here, see Dan Sperber, and Deirdre Wilson, Relevance (Oxford: Basil Blackwell, 1986), and, for a simpler presentation of the same account, Diane Blakemore, Understanding Utterances (Oxford: Basil Blackwell, 1992). A claim similar to the one made here is made in G. Baker, "Defeasibility and Meaning," in P. Hacker and J. Raz (eds.), Law, Morality, and Society (Oxford: Clarendon Press, 1977), pp. 26-57, at pp. 41-42; and in David Lyons, "Comment on Postema," in Ruth Gavison (ed.), Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987), pp. 114-126, at pp. 122-124. Lyons' account has been criticized in Roger A. Shiner, Norm and Nature: The Movements of Legal Thought (Oxford: Clarendon Press, 1992) pp. 139-141. The main force of Shiner's criticism is that Lyons has ignored various lessons that he should have learnt from Austin, in particular the distinction between locutionary meaning and illocutionary force. But the Gricean point that Lyons makes is quite compatible with these Austinian distinctions. The idea is that in giving a judgment a judge neither performs the locutionary act of uttering a sentence that entails that they believe the judgment is morally correct; nor performs the illocutionary act of asserting that they have such a belief. Rather they have implicated that they have the belief. Many of Shiner's criticisms seem based upon the idea that normative force should be identified as a form of illocutionary force. But this is simply to equivocate on the notion of force, and as a substantive claim no such identification should be made. Beliefs, as well as speech acts, can have normative force, but they have no illocutionary force. Austin himself was in fact very suspicious of the notion of the normative; see How to do things with Words (Oxford: Clarendon Press, 1962), p. 149.
49. "Hart on Moral Rights and Legal Duties," p. 131.
50. There is a further potential problem for Raz here. In the same article he suggests that we get a legal system not just when the officials believe in the moral justification of the law, but also when they simply pretend to; see "Hart on Moral Rights and Legal Duties," p. 130. But if legal statements are moral statements, then, since such judges will be in no position to sincerely utter moral statements, they will be in no position to sincerely utter legal statements. They will be simply pretending to make legal statements. But then we will just have a pretend legal system; not a real legal system underpinned by moral pretence.
51. "The Self-Destruction of Legal Positivism," p. 462. Note that Goldsworthy does not rest his case for the self-destruction of legal positivism on this argument. His primary argument is that positivism's self-destruction would follow from Raz's contention that committed legal statements are moral statements. Here, as we have seen, I agree with him, and simply deny that the moral attitude positivist should follow Raz. I am grateful to Jeff Goldsworthy for discussion here.
52. Strictly the argument concludes only that (2*) The officials believe that necessarily the laws are morally valuable. But if (2*) is to follow from (1), it presumably does so by means of an intermediary step like (2); so I have simplified the argument by focussing on the problematic move, namely from (1) to (2).
53. I.e. one that treats the description 'the laws' as a non-rigid designator picking out, with respect to any world, whichever laws the society happens to have in that world (and not as a rigid designator always picking out the laws which the society actually has).
54. Practical Reason and Norms, p. 175; see also The Authority of Law, p. 156.
55. Practical Reason and Norms, p. 175; see also The Authority of Law, p. 156.
56. For this account of fiction see David Lewis, "Truth in Fiction," in Philosophical Papers I (Oxford: Oxford University Press, 1978), pp. 261-280.
57. The Authority of Law, p. 156.
58. The Authority of Law, p. 153.
59. There is some linguistic evidence that there is a difference between deontic sentences that the speaker actually endorses and those that they merely use to report a state of affairs which they may not endorse. Robin Lakoff, following Larkin, cites the following pair of sentences: (1) My girl must be home by midnight - I think it's idiotic. (2) My girl has to be home by midnight - I think it's idiotic. For many speakers the first sentence is, at the very least, unhappy. Lakoff actually stars it. The second is fine. 'Must' seems to involve an endorsement of the normative claim that 'has to' does not. See R. Lakoff, "Language in Context", Language 48 (1972): pp. 907-927 at p. 925.
60. Gareth Evans, The Varieties of Reference (Oxford: Clarendon Press, 1982), p. 225.
61. Was this Hart's position? Stephen Perry seems to think not. He seems to think that for Hart there always is a normative reason to obey the law: Hart regards social rules of the kind he analyses as giving rise not just to a belief among a majority of persons within the group that they are obligated, but to actual (non-moral) obligations. . . . The theorist must understand and take account of the viewpoint of those who accept social rules, because such acceptance in fact gives them reasons for action. . . . The fact that some persons accept social rules is significant from a purely descriptive perspective, but beyond that it also explains, according to Hart, why a normative practice is normative. On Hart's philosophical analysis of social rules, the fact that the members of a group adopt the internal point of view towards their own behaviour is enough to give them reasons for action, in the form of social obligations. (Stephen Perry, "Interpretation and Methodology in Legal Theory," in Andrei Marmor (ed.), Law and Interpretation (Oxford: Clarendon Press, 1995), pp. 97-135, at p. 105.) don't agree. I think that whilst Hart believed that these social factors give rise to legal obligations, he didn't think that legal obligations automatically gave rise to normative reasons for actions. See for instance the discussion of the non- justificatory nature of the claim that a certain rule exists in his "Comment," in R. Gavison (ed.), Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987), pp. 37-42, at p. 39.
62. Was this Hart's position? Stephen Perry seems to think not. He seems to think that for Hart there always is a normative reason to obey the law: Hart regards social rules of the kind he analyses as giving rise not just to a belief among a majority of persons within the group that they are obligated, but to actual (non-moral) obligations. . . . The theorist must understand and take account of the viewpoint of those who accept social rules, because such acceptance in fact gives them reasons for action. . . . The fact that some persons accept social rules is significant from a purely descriptive perspective, but beyond that it also explains, according to Hart, why a normative practice is normative. On Hart's philosophical analysis of social rules, the fact that the members of a group adopt the internal point of view towards their own behaviour is enough to give them reasons for action, in the form of social obligations. (Stephen Perry, "Interpretation and Methodology in Legal Theory," in Andrei Marmor (ed.), Law and Interpretation (Oxford: Clarendon Press, 1995), pp. 97- 135, at p. 105.) don't agree. I think that whilst Hart believed that these social factors give rise to legal obligations, he didn't think that legal obligations automatically gave rise to normative reasons for actions. See for instance the discussion of the non-justificatory nature of the claim that a certain rule exists in his "Comment," in R. Gavison (ed.), Issues in Contemporary Legal Philosophy (Oxford: Clarendon Press, 1987), pp. 37-42, at p. 39.
63. It has become widespread for positivists to make a distinction between the theory of law and the theory of adjudication. Standardly this is to enable them to accept moral criteria in their theory of adjudication, without these criteria entering into the theory of law. (This gives rise to what is called "soft positivism" by Hart in the Postscript to the second edition of The Concept of Law; and "inclusive positivism" by Waluchow in Inclusive Legal Positivism (Oxford: Clarendon Press, 1994).) The point made here is that this process can go in the other direction too; there can be reference to moral criteria (or at least moral beliefs) in the theory of law, without there necessarily being parallel reference in the theory of adjudication.
64. Cf. The Concept of Law pp. 112-113, where Hart claims that such a feature "is logically a necessary condition of our ability to speak of the existence of a single legal system."