Hart on social rules and the foundations of law: Liberating the internal point of view

Fordham Law Review

Volumn 75, Issue 3, 2006, Pages 1171-1209

  Perry, Stephen ^a  

^a UNIVERSITY OF PENNSYLVANIA LAW SCHOOL   (United States)

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EID: 33846618330     PISSN: 0015704X     EISSN: None     Source Type: Journal    
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References (154)

1. H.L.A. Hart, The Concept of Law 89 (2d ed. 1994).
2. Scott Shapiro suggests that the internal point of view serves four distinct roles in Hart's theory of law, of which these are but two. The others are to specify a particular kind of motivation that the law can provide and to offer an account of the intelligibility of legal practice. Scott J. Shapiro, What Is the Internal Point of View?, 75 Fordham L. Rev. 1157 (2006).
3. To the best of my knowledge, the non-cognitivist aspect of Hart's understanding of the meaning of normative statements was first noticed by Raz. See Joseph Raz, H.L.A. Hart (1907-1992), 5 Utilitas 145, 147-49 (1993)
4. [hereinafter Raz, H.L.A. Hart (1907-1992)];
5. Joseph Raz, The Purity of the Pure Theory, 138 Revue Internationale de Philosophie 441, 447-48, 454 (1981)
6. [hereinafter Raz, The Purity of the Pure Theory].
7. John Gardner, Legal Positivism: 5 1/2 Myths, 46 Am. J. Juris. 199, 200 (2001).
8. See the helpful general discussions of conventionalism in law in Jules L. Coleman, The Practice of Principle 74-102 (2001);
9. Leslie Green, The Authority of the State 89-121 (1988);
10. John Finnis, Natural Law and Natural Rights 134-60 (1980);
11. Andrei Marmor, Legal Conventionalism, in Hart's Postscript: Essays on the Postscript to The Concept of Law 193 (Jules L. Coleman ed., 2001).
12. Jules L. Coleman, Negative and Positive Positivism, 11 J. Legal Stud. 139 (1982);
13. Gerald Postema, Coordination and Convention at the Foundations of Law, 11 J. Legal Stud. 165 (1982).
14. On Lewis-style conventions, see David K. Lewis, Convention: A Philosophical Study (1969).
15. Scott J. Shapiro, Law, Plans, and Practical Reason, 8 Legal Theory 387 (2002);
16. Scott J. Shapiro, Legal Activity as Massively Shared Agency (unpublished manuscript, on file with the author);
17. see also Coleman, supra note 5, at 95-102.
18. On Bratman's notion of Shared Cooperative Activity, see, e.g., Michael E. Bratman, Shared Cooperative Activity, 101 Phil. Rev. 327 (1992).
19. The sense of the term "normative" discussed in the text refers to the general notion of reason-givingness and is therefore applicable to all reasons for action, whether they derive from norms or not. But there is also another, overlapping sense of the term, which is concerned with the nature of norms as such. In this second sense, the term does not necessarily involve the idea of reason-givingness, since the point of some norms is not to guide conduct but rather to provide standards of evaluation. The norms of theory evaluation in science are of this kind, for example. I thank Scott Shapiro for reminding me of this point.
20. Cf. Joseph Raz, Incorporation by Law, 10 Legal Theory 1, 3 (2004).
21. See, e.g., Joseph Raz, Practical Reason and Norms 35-48 (1975).
22. Ronald Dworkin, Taking Rights Seriously 22-28 (1978).
23. Hart, supra note 1, at 52.
24. Id. at 53.
25. Id. at 54.
26. Id. at 55.
27. It is perhaps worth pointing out a certain oddity about the Rex example. A rule of recognition is supposed to be a social rule that holds among officials and officials only, but since in the example there is only one official, namely Rex, that could not be true here. Rex's right to rule clearly does not derive from a personal rule which he has unilaterally adopted, or which in some other way derives from his attitudes and behavior alone. It is clear from Hart's description of the example that the behavior and attitudes of members of the general population, and not just the behavior and attitudes of Rex, count among the existence conditions of the rule which confers on Rex the right to rule. In Part III, infra, I discuss the question of why Hart might have been led to make the somewhat implausible claims that (1) it is only the behavior and attitudes of officials that are to be taken into consideration in determining whether or not a rule of recognition exists, and (2) that a legal system can exist even if no one in the relevant society besides officials adopts the internal point of view. Id. at 116-17.
28. See id. at 55-57.
29. Id. at 86.
30. Id. at 91-92.
31. Id. at 90.
32. Id. at 94-95, 100-10.
33. Id. at 110.
34. Hart writes that the statement that someone is under a duty or obligation always implies the existence of a rule, but that the converse does not hold. For example, rules of etiquette are taken to be reason-giving but not obligation-imposing. Id. at 85-86. This is a complication which for present purposes we can ignore, however, since Hart makes clear that social rules in the legal context are always taken to be obligation-imposing.
35. Id. at 116.
36. Id. at 112-17.
37. Id. at 90.
38. Id. at 90-91.
39. Stephen R. Perry, Holmes Versus Hart: The Bad Man in Legal Theory, in The Path of Law and Its Influence: The Legacy of Oliver Wendell Holmes, Jr. 158 (Steven J. Burton ed., 2000)
40. [hereinafter Perry, Holmes Versus Hart];
41. Stephen R. Perry, Interpretation and Methodology in Legal Theory, in Law and Interpretation 97 (Andrei Marmor ed., 1995)
42. [hereinafter Perry, Interpretation and Methodology in Legal Theory].
43. Scott J. Shapiro, The Bad Man and the Internal Point of View, in The Path of the Law and Its Influence, supra note 28, at 197, 200.
44. Shapiro reiterates this point in Shapiro, supra note 2, at 1159.
45. Hart, supra note 1, at 203.
46. Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 459-61 (1897).
47. My argument began with the observation that Hart had conflated two senses of the expression "external point of view." In one sense in which he uses the term, the external point of view is the perspective of an observer of the relevant social practice who is engaged in a process of theoretical reasoning and who describes the practice from, so to speak, the outside. But Hart also uses the expression to refer to the perspective of someone like Holmes's bad man, who pays attention to the law only for the self-interested reason that he wishes to avoid being subjected to sanctions. The bad man is clearly a participant in the practice, not an observer, and he is engaging in a process of practical rather than theoretical reasoning. I then pointed out that, because the bad man is an insider and a practical reasoner, his perspective might be thought of as a second kind of internal point of view which is in competition with Hart's own understanding of that notion. Finally, I suggested that Hart had not given us sufficient reason for privileging one insider's perspective over the other. I did not mean to suggest that a Holmesian theory of law could dispense completely with the internal point of view in Hart's sense, since the notion of a rule, or of some similar normative notion, would undoubtedly be required to make sense of the practices of officials. See Perry, Holmes Versus Hart, supra note 28, at 196 n.69.
48. But Hart himself allows for the possibility that no one besides officials might adopt the internal point of view in his sense, Hart, supra note 1, at 117, and that is precisely what a Holmesian legal system would look like. What I did not make clear in these earlier articles is that Hart's analysis of social rules leaves him no choice but to say that a legal system could exist even if no one other than officials accepts the legitimacy of law. I discuss the reasons for this in Part IV, infra. At the time that I wrote those earlier articles, I also did not appreciate that Hart in fact held a non-cognitivist theory of the meaning of legal statements. As Scott Shapiro has pointed out to me, it is not at all clear why one could not offer a non-cognitivist analysis of legal statements understood as Holmesian threats which would explain their normativity in expressivist terms along lines very similar to Hart's own account. I discuss the non-cognitivist dimension of Hart's analysis of legal statements in Part III, infra. For an interesting discussion of what a Holmesian (or Hobbesian) theory of law might look like, see Claire Finkelstein, Hobbes and the Internal Point of View, 75 Fordham L. Rev. 1211 (2006).
49. Hart, supra note 1, at 81.
50. Id.
51. It has often been remarked that Hart draws this important distinction in a number of different and ultimately inconsistent ways. See, e.g., Neil MacCormick, H.L.A. Hart 103-06 (1981);
52. Joseph Raz, The Authority of Law 177-79 (1979);
53. P.M.S. Hacker, Hart's Philosophy of Law, in Law, Morality, and Society: Essays in Honour of H.L.A. Hart 1, 19-21 (P.M.S. Hacker and Joseph Raz eds., 1977);
54. Stephen R. Perry, Hart's Methodological Positivism, in Hart's Postscript, supra note 5, at 311 n.4. Besides the attempt to differentiate the two types of rules on the basis of their supposed character as duty-imposing in the one case and power-conferring in the other, the other main way that Hart tries to draw the distinction characterizes secondary rules as "on a different level from the primary rules, for they are all about such rules." Hart, supra note 1, at 94, 97. Probably the best way to make sense of this claim that secondary rules are on a different level from primary rules is simply to take it as asserting that secondary rules play a constitutive or foundational role in legal systems. The terminological picture is further complicated by the fact that Hart sometimes uses the term "primary rule" to mean not the valid rules of a legal system, but rather the customary rules of primitive or pre-legal societies. Id. at 91-92. This is a particularly confusing usage because customary rules are, of course, the very class of norm that Hart's notion of a social rule is meant to capture.
55. Hart, supra note 1, at 103, 109-10. Note that it does not follow from the fact that a valid law is habitually ignored that it is not a norm in the sense I defined in Part I, since a valid law still has social existence conditions which refer, for example, to the fact that it was enacted by some legislative body. Hart states that once we have a rule of recognition which specifies criteria of validity, the statement that a rule exists "may now be an internal statement applying an accepted but unstated rule of recognition and meaning (roughly) no more than 'valid given the system's criteria of validity.'" Id. at 110. But the possibility of such "internal" statements of existence does not preclude the possibility of "external" statements which assert that a given valid rule of a legal system exists because it meets certain social existence conditions, for example, that the legislature of the society in question has performed certain actions which, according to the society's relevant (and practiced) rules of change and recognition, amount to the enactment of the rule as a law for that society.
56. Id. at 91-99.
57. Id. at 95.
58. Id. at 96.
59. Id. at 105-10.
60. Cf. MacCormick, supra note 35, at 111-18. As an incidental point, it is interesting to observe that general customary practices of this kind, which are recognized as valid law by the rule of recognition, play a kind of dual role in Hart's theory, because they are at the same time not only valid laws of the relevant legal system, but also social rules in Hart's sense; the law merchant, for example, consisted of social rules among that class of citizens who regularly engaged with one another in certain kinds of commercial transactions.
61. MacCormick helpfully describes an imagined historical process in which a customary duty on the part of certain persons to apply existing customary rules-where the social rule giving rise to such a duty would amount, in effect, to a primitive rule of recognition-might gradually give way to a more complex social practice such that, at a certain point, "it becomes appropriate for the hermeneutic theorist to describe the position in terms of separate power-conferring secondary rules." Id. at 116. MacCormick points out that such a power-conferring rule might at first be limited to a power to modify existing customary rules-making it, in a quite literal and restricted sense, nothing more than a rule of change-but that it could evolve over time into a rule conferring a more general and unfettered power to legislate. Id. at 115-18.
62. Hart, supra note 1, at 41-42.
63. Id. at 96.
64. Id. at 33-42.
65. Id. at 26-49.
66. See id. at 41 ("[P]ower-conferring rules are thought of, spoken of, and used in social life differently from rules which impose duties, and they are valued for different reasons. What other tests for difference in character could there be?").
67. Id. at 91-92.
68. Id. at 98.
69. Id. at 98-99.
70. MacCormick, supra note 35, at 115. MacCormick does not refer specifically to the example of the law merchant, but this is clearly the kind of customary practice that he has in mind.
71. Hart, supra note 1, at 96.
72. The following remarks by MacCormick seem apposite in this regard: [I]f in a constitutional state one criterion of recognition of rules binding on judges is that they be rules validly enacted by the legislature, the "validity" of a legislative act does not depend on the rule of recognition itself directly. Legislation is validly enacted if it satisfies the constitutional provision (a Hartian rule of change) governing the legislature's power. As such, it yields a valid or binding ground of judicial decision. This in turn implies a judicial duty to apply the constitutional provision. It does not follow that the rule of recognition makes the constitution "valid" in any other sense. MacCormick, supra note 35, at 115.
73. Hart of course also refers to a third kind of power-conferring secondary rule, namely rules of adjudication. MacCormick offers a plausible historical reconstruction of how a customary social rule imposing upon certain specified individuals (for example, village elders) a duty to settle disputes might, as a distinct judiciary emerged, evolve into a customary power-conferring rule of adjudication, which in turn would be subject, as a true and unfettered rule of change evolved, to modification by statute. "The 'rules of adjudication' became validly enacted new rules, created by exercise of parliament's power of change. Judges and other senior lawyers and officials were committed to accepting each change as valid because conformable to the developed criteria of recognition accepted by them from the internal point of view." Id. at 119. It is thus possible that rules of adjudication are not, after all, secondary rules as defined in the text, but are, rather, simply valid primary rules of the relevant legal system.
74. Notice that this description would be a first approximation only because sophisticated legal systems regulate their own character and content and so can, by the enactment of valid laws or the adoption of appropriate constitutional changes, modify in various ways the makeup of the legislature, its rules of procedure, etc. But the same point of course also holds true of the rules governing, say, the jurisdiction and procedures of the courts, even though the rule of recognition only exists, for Hart, as a customary practice among judges. Perhaps the most appropriate characterization of the situation in both cases is to say that fundamental customary practices can change over time, and sometimes such changes have legal sources. But just as it is true for changes in the rule of recognition that, as Hart says, "all that succeeds is success," Hart, supra note 1, at 153, presumably a parallel point also holds of changes in the fundamental power-conferring rule that is constituted by the customary practices of legislators.
75. Id. at 107.
76. This is a slight oversimplification. See supra note 23.
77. Bentham not only argued that all laws are reducible to commands, but he also explicitly argued that all power-conferring laws are reducible to conditional commands of various kinds. This latter aspect of Bentham's reductivist program is discussed by Hart in H.L.A. Hart, Essays on Bentham 194-219 (1982).
78. See, e.g., John Austin, The Province of Jurisprudence Determined 24-25 (Wilfrid E. Rumble ed., 1995).
79. Hart, supra note 1, at 84.
80. Joseph Raz, Two Views of the Nature of Law: A Partial Comparison, 4 Legal Theory 249, 253 (1998);
81. see also Raz, H.L.A. Hart (1907-1992), supra note 3, at 147-49;
82. Raz, The Purity of the Pure Theory, supra note 3, at 447-48, 454. Hart explicitly states that he accepts a non-cognitivist analysis of legal statements in Hart, supra note 58, at 158-60. Kevin Toh makes a careful and detailed case for the view that Hart is a norm-expressivist, meaning that he adopts an expressivist semantic strategy in combination with non-cognitivism to explain the meaning of statements containing normative terms.
83. Kevin Toh, Hart's Expressivism and His Benthamite Project, 11 Legal Theory 75 (2005). Scott Shapiro appears to offer a similar view of Hart's semantics in Shapiro, supra note 2, at 1168-70. As I understand them, both Toh and Shapiro differ from Raz in that they regard Hart's analysis of the meaning of internal legal statements as fully non-cognitivist, and not, as Raz would have it, as a hybrid view containing both cognitivist and non-cognitivist components. Nothing turns on this difference for present purposes. Raz, however, does not appear to regard Hart's non-cognitivism as a form of norm-expressivism, suggesting instead that it grows out of J.L. Austin's theory of performative utterances which can have various kinds of illocutionary force.
84. See, e.g., Raz, H.L.A. Hart (1907-1992), supra note 3, at 149. Austin's most complete statement of his theory of performative utterances is to be found in J.L. Austin, How To Do Things with Words (1962).
85. This would appear to be Hart's view about the meaning not only of internal statements of validity such as "It is the law of Pennsylvania that everyone has an obligation to do X," but also of internal statements to the effect that the rule of recognition itself is obligatory for officials. Cf. Toh, supra note 61, at 90-91.
86. As was pointed out in the Introduction, the internal point of view serves a dual role in Hart's theory of law. It both specifies one of the constitutive elements of a social rule, and it helps to explain the normative dimension of the meaning of internal legal statements.
87. The earlier positivists would allow that law can, qua law, give rise to changes in a person's normative situation, since laws are orders backed by threats and threats can give rise to prudential reasons for action. Hart, by contrast, would appear to be committed to the view that law, qua law, does not give rise to any reasons that can be characterized as specifically legal in nature.
88. See supra note 61. Hart explicitly characterizes lawmaking acts in terms of Austinian performatives in Hart, supra note 58, at 260.
89. Cf. MacCormick, supra note 35, at 73 ("The key point... is that all the acts which are acts of exercising the so-called power are acts which necessarily and intrinsically invoke the rule in some way."). MacCormick takes this to be a truth which any account of normative powers must acknowledge, but this is not so; it is possible to offer accounts of normative powers which are not rule- or practice-based.
90. Perhaps it might be suggested that Hart's analysis of internal legal statements of obligation similarly appears to require that those who make such statements must have a concept of the underlying rule, since he often describes the attitudinal aspect of internal statements in such terms as "endorse as binding" or "regard as obligatory." The suggestion would be, in effect, that one cannot endorse a pattern of conduct as obligatory unless one possesses the concept of obligation, and, for Hart at least, one cannot possess the concept of obligation unless one possesses the concept of a rule. If this suggestion is correct, then Hart's account of categorical duty-imposing social rules would be subject to a difficulty similar to that which I argue in the text arises for power-conferring rules. One possible response that might be made on Hart's behalf is that his non-cognitivism is limited to legal statements and does not apply to moral statements. If that is so, then he could with complete propriety maintain that the attitudinal aspect of legal statements can express an endorsement that utilizes the moral concept of obligatoriness. Moreover, he could allow for the possibility that legal statements can express moral endorsement and still consistently maintain, as in fact he does, that the meaning of normative terms is different in moral and legal discourse. See Hart, supra note 58, at 146-47. He could maintain this latter view because the meaning of legal statements would be explained in non-cognitivist terms and by reference to the existence of rules of a certain kind, whereas his account of the meaning of moral statements would presumably be a cognitivist one, and hence would treat such statements as capable of being true or false. If, however, Hart was motivated to be a non-cognitivist about legal statements at least partly by his commitments to naturalism and empiricism, then it is difficult to see why he would not be a non-cognitivist about all normative statements, including moral statements. In that case, Hart's use of such terms as "regard as obligatory" to describe the attitudinal aspect of normative statements would presumably have to be understood as shorthand for expressions of (nonmoral) approval of a pattern of conduct, or something along those lines. In any event, since Hart is quite clear that one can adopt the internal point of view for nonmoral reasons, Hart, supra note 1, at 203, it follows that he does not regard the non-cognitivist dimension of legal statements as necessarily involving moral endorsement. There are, moreover, some textual indications that Hart did in fact originally intend his analysis of social rules, and hence his non-cognitivism, to apply to moral as well as to legal statements of obligation, as, for example, when he writes that the statement that someone has an obligation (including, presumably, a moral obligation) implies the existence of a rule.
91. Id. at 85. However, in the Postcript to the second edition of The Concept of Law, Hart states that he no longer regards his "practice theory of rules" as a sound explanation of morality, "either individual or social."
92. Id. at 256.
93. Hart, supra note 1, at 102 (emphasis added).
94. See P.T. Geach, Ascriptivism, 69 Phil. Rev. 221 (1960);
95. P.T. Geach, Assertion, 74 Phil. Rev. 449 (1965). Both articles are reprinted in P.T. Geach, Logic Matters (1972). Interestingly, one of Geach's primary targets in the first of these articles was an early article of Hart's, in which Hart offers an ascriptivist analysis of attributions of action and responsibility.
96. H.L.A. Hart, The Ascription of Responsibility and Rights, 49 Proc. Aristotelian Soc'y 171 (1949). As Kevin Toh points out, Hart states in the preface to Punishment and Responsibility that Geach's criticism of the latter article is justified, and that he no longer considers its main contentions to be defensible. Toh, supra note 61, at 102 (discussing H.L.A. Hart, Punishment and Responsibility (1968)). Toh goes on to express the view that "the apparent inconsistency between Hart's disowning of his ascriptivism and... his adherence to expressivism can[not] be eliminated."
97. Id.
98. For proposed solutions to the Frege-Geach problem, see, e.g., Simon Blackburn, Spreading the Word 181-223 (1984);
99. Allan Gibbard, Wise Choices, Apt Feelings 83-102 (1990);
100. Simon Blackburn, Attitudes and Contents, 98 Ethics 501 (1988). As Toh points out, the viability of these proposals remains controversial.
101. Toh, supra note 61, at 102.
102. Hart, supra note 58, at 258. I thank Scott Shapiro for drawing this passage to my attention.
103. Id. at 259.
104. Hart, supra note 1, at 102.
105. It will be recalled that in Part II I concluded that rules of change are best understood as customary rules that hold among legislators. In the displayed passage from Essays on Bentham, Hart describes a simple rule of change that takes the form of a conditional duty-imposing customary rule, in which the custom holds for the society at large. But in a more sophisticated society, in which not everyone adopts the internal point of view, the custom will have to be limited to officials; for the reasons that I discussed in Part II, the relevant officials for these purposes are not judges, but rather legislators.
106. Raz, supra note 10, at 105. A similar suggestion has also been made by MacCormick.
107. See MacCormick, supra note 35, at 76-77.
108. Raz, supra note 10, at 105-06.
109. Raz defends the very plausible view that a person has a power to effect a normative change if there is sufficient reason for regarding an intentional action on his or her part as effecting such a change, and if the justification for so regarding the action is that it is desirable to enable persons to make such normative changes by means of such acts. See, e.g., Raz, supra note 35, at 18. Raz has suggested to me in a private communication that it is plausible to think that any normative change is a conditional or unconditional change in the circumstances under which there is a duty, so that one could, for example, explain a power to confer a power in the following way: "If by doing B, Y is using a power to create a duty on X to do A because there is a rule to the effect that if Y does B, then X has a duty to do A, then Z has the power to give Y the power to impose a duty on X if there is a rule which says that if Z does C, then if Y does B, then X has a duty to do A." It does not follow, however, from the fact that every normative change can be explained as a change in the circumstances under which there is a duty, that every power-conferring norm is logically equivalent to a duty-imposing norm. It is this latter result that Raz denies in the cited passage from Practical Reason and Norms, and that Hart requires if the strategy of reducing all power-conferring rules to duty-imposing rules is to be successful. It is also worth pointing out in this regard that Raz has elsewhere very plausibly argued that the ascription of rights has a dynamic character, in the sense that a right is not necessarily merely the ground of an existing duty, but may with changing circumstances generate new duties in the future.
110. See Joseph Raz, The Morality of Freedom 185-86 (1986) [hereinafter Raz, The Morality of Freedom]. If that is correct, however, then the legal creation of a right may not be strictly explicable as, and therefore reducible to, a change in the circumstances under which persons have duties. We could not, for example, replace a description of a normative situation which makes reference to rights with a description that makes reference only to existing duties.
111. Hart, supra note 1, at 41.
112. Hart, supra note 58, at 219.
113. Hart, supra note 1, at 42.
114. Raz, The Morality of Freedom, supra note 77, at 23.
115. For further discussion, see Stephen Perry, Law and Obligation, 50 Am. J. Juris. 263, 266-76 (2005).
116. See supra notes 5-7 and accompanying text.
117. See, e.g., Finnis, supra note 5, at 1-22, 231-59;
118. Raz, supra note 35, at 1-33;
119. Joseph Raz, Ethics in the Public Domain 194-221 (1994) [hereinafter Raz, Ethics in the Public Domain];
120. Raz, The Morality of Freedom, supra note 77, at 23-105.
121. See, e.g., Raz, supra note 35, at 143-45, 157-59.
122. For an interesting discussion of this question in the context of American law, see Matthew P. Adler, Popular Constitutionalism and the Rule of Recognition: Whose Practices Ground U.S. Law?, 100 Nw. U. L. Rev. 719 (2006).
123. Raz, Ethics in the Public Domain, supra note 84, at 195.
124. See Raz, The Morality of Freedom, supra note 77, at 65.
125. Hart says that, in pre-legal, customary societies, "it is plain that [those who reject the rules] cannot be more than a minority." Hart, supra note 1, at 92. It is not entirely clear whether he regards this as an explicit elaboration of the existence conditions of a social rule, so that if only a minority adopted the internal point of view the rule could not be said to exist, or whether he is limiting himself to the sociological observation that a customary society in which only a minority held the internal point of view would not endure for very long. Either way, it is clear that there must be some minimum number of persons who hold the internal point of view before a social rule can even be said to exist among a group, and one would expect this number to consist of at least a bare majority.
126. Id. at 117.
127. Raz, following Hans Kelsen, has made the very important point that it is possible to engage in the normative discourse of the law without actually accepting the law's moral authority, since it is possible to engage in such discourse by adopting a hypothetical or detached perspective. One can thus speak as though the law has moral authority while not actually accepting that it does, or while withholding belief on whether or not it does. See, e.g., Raz, supra note 35, at 137-43.
128. Other theories that take the foundational arrangements of law to consist of norms might well confront problems similar to those I have said face Hart's theory. But such problems should generally not arise for theories that view the normativity of law in moral terms.
129. Both Toh and Shapiro make this point, and observe that many legal theorists have criticized Hart either for assuming that social rules are inherently reason-giving, or for failing to give an account of how they could be reason-giving. Shapiro, supra note 2, at 1166-67;
130. Toh, supra note 61, at 77. I have in the past been guilty of this sin myself.
131. See Perry, Holmes Versus Hart, supra note 28;
132. Perry, Interpretation and Methodology, supra note 28. Once, however, one realizes that Hart was really a non-cognitivist, such criticisms are immediately seen to be beside the point.
133. Cf. Hart, supra note 1, at 107-08. There are, indeed, many questions which we can raise about this ultimate rule [i.e., the rule of recognition].... We can ask whether it is a satisfactory form of legal system which has such a rule at its root. Does it produce more good than evil? Are there prudential reasons for supporting it? Is there a moral obligation to do so? These are plainly very important questions; but, equally plainly, when we ask them about the rule of recognition, we are no longer attempting to answer the same kind of question about it as those which we answered about other rules with its aid.... [W]hen we move from the statement that a particular enactment is valid, to the [external] statement that the rule of recognition ... is an excellent one and the system based on it is one worthy of support, we have moved from a statement of legal validity to a statement of value.
134. Id. Given that Hart understands legal normativity in partially non-cognitivist terms, it is difficult to see why he would understand moral normativity any differently. See supra note 69. Be that as it may, Hart clearly thinks that morality provides a distinct source of evaluative judgments that can be brought to bear, as an external matter, upon law.
135. I am here using the term "conventionalist" in a deliberately broad fashion. See supra note 5. In the Postcript to the second edition of The Concept of Law, Hart modifies his view of social rules in general, and of the rule of recognition in particular, so as to apply only to "conventional social practices." Social practices are defined as conventional "if the general conformity of a group to them is part of the reasons which its individual members have for acceptance."
136. Hart, supra note 1, at 255. However, since Hart does not appear to be at all concerned with the ways in which the conventionality of a rule might further affect the reasons for action of those who accept the rule, this change in his view appears to be completely unmotivated.
137. Coleman, supra note 5, at 74-102;
138. Shapiro, supra note 2.
139. Coleman states that "[l]aw necessarily claims a normative power to create genuine rights and obligations," but denies that the rights and obligations which are the subject of this claim must be moral rights and obligations. Coleman, supra note 5, at 143-44.
140. On Hart's view of the relationship between legal and moral normativity, see supra note 69.
141. For a recent statement of Raz's view, see Raz, supra note 9, at 6.
142. For a more detailed defense, see J. Raz, Hart on Moral Rights and Legal Duties, 4 O.J.L.S. 123, 129-31 (1984).
143. The distinction I am drawing here between the possibility that law might be grounded in a moral principle and the possibility that it might be grounded in a constitutive norm is similar but not identical to the distinction Dworkin once drew between the possibility that law might be grounded in "concurrent morality" and the possibility that it might be grounded in "conventional morality." Dworkin, supra note 11, at 53.
144. Finnis, supra note 5, at 250.
145. Raz, Ethics in the Public Domain, supra note 84, at 194-204. I discuss both Raz's and Finnis's views on the authority of law in Perry, supra note 82.
146. Ronald Dworkin, Law's Empire 176-224 (1986). I have elsewhere suggested that Dworkin's argument tying the legitimacy of law to integrity should be understood as based on the claim that when a legal system possesses the virtue of integrity, the relationship between the political community and its individual members is thereby rendered intrinsically valuable. See Stephen Perry, Associative Obligations and the Obligation to Obey the Law, in Exploring Law's Empire: The Jurisprudence of Ronald Dworkin 183, 198-205 (Scott Hershovitz ed., 2006).
147. Elsewhere I have discussed the proper framing of these questions, and offered a preliminary discussion of how one might go about showing that there is a necessary connection between morality and the normative content of law. See Perry, supra note 102, at 183-89.
148. Finnis, supra note 5, at 319. Because of this aspect of his views, Finnis does not, in fact, think that law claims moral authority, but only that it claims legal authority.
149. See Perry, supra note 82, at 289 n.46.
150. As I noted earlier, the properly generalized version of a general obligation to obey is something like the idea that the law has general normative force. For a theorist who thinks that the law claims moral legitimacy, the conclusion that there is a general obligation to obey-more generally, that the law has general moral force-is just a correlate of the conclusion that the law's claim to moral authority is, in fact, a justified one. But even a theorist who thinks that the normativity of law is nonmoral in nature might conceivably also think that the law possesses, either necessarily or under certain fairly easily satisfiable conditions, a moral property which gives rise to a general moral obligation to obey the law.
151. Raz, Ethics in the Public Domain, supra note 84, at 325-38.
152. Id. at 201.
153. Raz denies that this is true of his own "service" conception of authority. See id. at 219. I believe that he is wrong on this point, although I cannot discuss the matter here.
154. I have criticized certain aspects of the service conception in Perry, supra note 82, at 276-84, 290-91.