Raz on detachment, acceptance and describability

Oxford Journal of Legal Studies

Volumn 27, Issue 3, 2007, Pages 403-427

  Toh, Kevin ^a  

^a INDIANA UNIVERSITY   (United States)

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EID: 34548472223     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqm001     Document Type: Article

References (150)

1. H.L.A. Hart, The Concept of Law (Oxford: Clarendon Press 2nd edn, 1994) at vi.
2. Ibid at 224.
3. Such a presumption against describability seems quite common in the present-day humanities in general, including anthropology, as indicated by Clifford Geertz's somewhat bemused characterization of E.E. Evans-Pritchard's writings that I have quoted at the beginning of this article. See Clifford Geertz, Works and Lives: The Anthropologist as Author (Stanford: Stanford University Press 1988) at 68.
4. See Hart, above n 1 at vi, 89-91, 102-3, 291.
5. In his inaugural lecture, Hart spoke of the difficulties in defining crucial legal terms, and of an alternative philosophical approach of making careful descriptions of their typical uses in legal contexts. See Hart, 'Definition and Theory in Jurisprudence' (1954) in Hart, Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press 1983). Most likely, Hart was here influenced by the then-prevalent thought that one way of giving an analysis of a word is to describe its typical uses.
6. See e.g. Friedrich Waismann, 'How I See Philosophy' (1956) in Waismann, How I See Philosophy (London: MacMillan Press 1968). These semantic ideas provide the theoretical setting for Hart's characterization of internal legal statements in The Concept of Law
7. Allan Gibbard distinguishes between 'straight' and 'oblique' analyses in his Thinking How to Live (Cambridge, MA: Harvard University Press 2003) at 185. But the idea behind the distinction is of older vintage and can be found in the thought, referred to in the previous note, that one way of giving an analysis of a word is to describe its typical uses.
8. The only other people that I am aware of are John Devlin and Michael Smith. Devlin was the first to urge me to read Hart as an expressivist.
9. Raz, 'H.L.A. Hart (1907-1992)' (1993) 5 Utilitas 148.
10. See a similar characterization in Raz, 'The Purity of the Pure Theory' (1981) 35 Revue International de Philosophie 448.
11. Toh, 'Hart's Expressivism and His Benthamite Project' (2005) 11 Legal Theory 75.
12. Considerations for this alteration (as well as some others) are provided ibid at s IV. In formulating (A2) above, I am relying on Robert Stalnaker's pragmatic conception of presupposition. According to that conception, a speaker presupposes a proposition when he takes its truth for granted, and assumes that others involved in the conversation do the same. See Stalnaker, 'Pragmatic Presuppositions' (1974) in Stalnaker, Content and Context (Oxford: Oxford University Press 1999) at 49.
13. Cf. Hart, 'Bentham and the Demystification of the Law' (1973) in Hart, Essays on Bentham (Oxford: Clarendon Press 1982) at 28.
14. See Raz, Practical Reason and Norms (Princeton: Princeton University Press 2nd edn, 1990) at 172 3;
15. Legal Validity' (1977) in Raz, The Authority of Law (Oxford: Clarendon Press 1979) at 155;
16. 'Sources, Normativity, and Individuation', postscript to Raz, The Concept of a Legal System (Oxford: Clarendon Press 2nd edn, 1980) at 235-6.
17. See also G.P. Baker, 'Defeasibility and Meaning' in P.M.S. Hacker and J. Raz (eds), Law, Morality, and Society (Oxford: Clarendon Press 1977) at 41-2;
18. John Finnis, Natural Law and Natural Rights (Oxford: Clarendon Press 1980) at 234-6.
19. In a comment on an earlier draft of this article, Raz objected to my classification of detached legal statements as internal legal statements. Raz thinks of the phenomenon of detached legal statements as one of the reasons for being sceptical generally about Hart's distinction between internal and external legal statements. I am much more sanguine about Hart's taxonomy. I believe that Hart's distinction is roughly a linguistic variant of the distinction between the deliberative standpoint and the theoretical standpoint, which has been a useful mainstay of philosophy of action and of ethics at least since Kant. In any case, at the beginning of s 2 earlier, I introduced the distinction between the two kinds of legal statements as the distinction between statements of law and statements about laws and legal systems. In light of Hart's analysis of the latter legal statements as descriptions of a community's patterns of behaviour and their psychological attitudes towards such patterns of behaviour, we see that Raz's characterization of detached legal statements puts them squarely in the category of internal legal statements: 'A detached legal statement is a statement of law, of what legal rights or duties people have, not a statement about people's beliefs, attitudes or actions, not even about their beliefs, attitudes or actions about the law.' See Raz, 'Legal Validity', above n 12 at 153.
20. See Raz, 'Kelsen's Theory of the Basic Norm' (1974) in The Authority of Law, above n 12 at 141;
21. Practical Reason and Norms, above n 12 at 175;
22. 'Sources, Normativity, and Individuation', above n 12 at 237;
23. 'The Purity of the Pure Theory', above n 8 at 453. Interestingly, Hart discusses the phenomenon of detached legal statements, though he does not use that term, in a couple of places that predate Raz's more sustained discussion.
24. See Hart, 'Kelsen's Doctrine of the Unity of Law' (1968), in Essays in Yurisprudence and Philosophy, above n 5 at 329;
25. Hart, 'Legal Duty and Obligation' (1966) revised and reprinted in Essays on Bentham, above n 11 at 146. But in these places, Hart does not seem bothered by the fact that the analysis of internal legal statements that he proposes in The Concept of Law does not account for these detached statements.
26. See Practical Reason and Norms, above n 12 at 172, 176-7;
27. 'Kelsen's General Theory of Norms' (1976) 6 Philosophia 499, at 500;
28. 'Legal Validity', above n 12 at 153, 155-6;
29. 'Sources, Normativity, and Individuation', above n 12 at 236.
30. See 'Kelsen's Theory of the Basic Norm', above n 14 at 140;
31. Practical Reason and Norms, above n 12 at 176;
32. 'Kelsen's General Theory of Norms', above n 15 at 499, 500;
33. 'Legal Validity', above n 12 at 153, 155-6;
34. 'Sources, Normativity, and Individuation', above n 12 at 236.
35. See Practical Reason and Norms, above n 12 at 170-1, 174-5.
36. Raz's detached legal statements are supposed to be equivalent to Kelsen's Rechtssätze. It may be worth pointing out here that at least one influential Kelsen commentator has argued that Kelsen's Rechtssätze are equivalent to Hart's external legal statements. See, Eugenion Bulygin, 'Enunciados Juridicos y Positivismo: Repuesta a Raz' (1981) in Carlos E. Alchourrón and Eugenio Bulygin, Análisis Lógico y Derecho (Madrid: Centro Estudios Constitucionales 1991) at 433.
37. Practical Reason and Norms, above n 12 at 175.
38. Raz is similarly terse in 'Legal Validity', above n 12 at 153,
39. and The 'Purity of the Pure Theory', above n 8 at 455. In these places Raz is far more concerned to show that detached legal statements are not equivalent to committed legal statements, and seems to consider the non-equivalence of detached and external legal statements obvious, or at least fairly easy to show.
40. 'Sources, Normativity, and Individuation', above n 12 at 235-6.
41. The mental attitudes that Raz speaks of in the above passage are beliefs. But, at least in exploring ways to extend Hart's analysis of internal legal statements, it would be more accurate to speak of norm-acceptances instead.
42. The two possibilities I am outlining in this paragraph and the next are intended to approximate the theory and mental simulation approaches, respectively, to explaining mental state attributions. I have benefited from the articles collected in Martin Davies and Tony Stone (eds), Folk Psychology (Oxford: Blackwell Publishers 1995), especially the introduction by the editors.
43. One consideration that Alvin Goldman relies on to argue against folk-theory theories is the conjunction of young children's ability to interpret others, and the implausibility of attributing to them the knowledge of the laws of folk psychology. See Goldman, 'Interpretation Psychologized' (1986) in Davies and Stone (eds), Folk Psychology, above n 22 at 80.
44. Cf. ibid at 94.
45. Cf. Raz, 'The Purity of the Pure -Theory', above n 8 at 453, 457.
46. Practical Reason and Norms, above n 12 at 177. Gilbert Harman, for one, has noticed their uses in the moral discourse.
47. See 'Moral Relativism Defended' (1975) in Harman, Explaining Value (Oxford: Clarendon Press 2000) at 9-10.
48. I owe this observation to David Hills. See also Allan Gibbard, Wise Choices, Apt Feelings (Cambridge MA: Harvard University Press 1990) at 246-8.
49. See Hart, The Concept of Law, above n 1 at 57, 140.
50. Gibbard relies on a strikingly similar characterization of norm-acceptance: See Wise Choices, Apt Feelings, above n 27 at 74, 75.
51. Essays in Jurisprudence and Philosophy, above n 5 at 13-14.
52. 'Legal Duty and Obligation', above n 14 at 154-5.
53. In fact, Raz has also said that committed internal statements are 'primary' legal statements, and that detached internal statements are 'parasitic' on the committed statements. See Raz, 'Legal Rights' in Raz, Ethics in the Public Domain (Oxford: Clarendon Press 1994) at 254. Raz, however, does not indicate how exactly the parasitic relation holds, as I try to do subsequently.
54. Practical Reason and Norms, above n 12 at 172-5.
55. See 'The Purity of the Pure Theory', above n 8 at 447-8;
56. 'H.L.A. Hart (1907-1992)', above n 8 at 147;
57. see also Baker, 'Defeasibility and Meaning', above n 12.
58. I discussed briefly the difference between straight and oblique analyses in s 2 above.
59. It may be thought that (A3)(ii), as currently formulated, is inaccurate because a speaker of a detached legal statement need not sincerely presuppose the relevant descriptive content. But nothing in Stalnaker's conception of presupposition requires the commitment involved in presupposing a proposition to be a sincere one. Stalnaker has suggested that participants in a conversation need not literally take the truth of the presupposed proposition for granted. Instead, participants may accept a known falsehood or a doubtful proposition for the purpose of furthering conversation. See Stalnaker, 'Presuppositions' (1973) 2 Journal of Philosophical Logic 449. In other words, participants in a conversation may assume and abandon presuppositions at will. And that seems to depict accurately what speakers of detached legal statements are up to.
60. See Raz, 'Kelsen's Theory of the Basic Norm', above n 14 at 145. I should emphasize that I am not actually proposing (A3) as a plausible analysis of detached legal statements. (A3) merely indicates how an analysis of committed legal statements can be extended to cover detached ones. I am not of the view that (A2) is a plausible analysis of committed legal statements, and have proposed what I consider a better analysis elsewhere.
61. See Toh, 'Objectivity and the Plural Acceptance of Norms' (unpublished manuscript). My view is that that better analysis can be extended in a way analogous to the way that (A2) has here been extended to cover detached legal statements.
62. This distinction must be kept separate from the distinction between committed and detached normative statements.
63. See Raz, 'Legal Validity', above n 12 at 155;
64. see also 'The Purity of the Pure Theory', above n 8 at 454-5;
65. 'Hart on Moral Rights and Legal Duties' (1984) 4 OJLS 130.
66. Given that Raz is himself not an expressivist like Hart, sentences such as the one in the text can be thought misleading. Raz is a cognitivist who conceives normative statements, including internal legal statements, as descriptive statements. For him, an acceptance is a belief. For ease of exposition, however, I will be speaking throughout this article as if Raz were an expressivist. I assume that this will not compromise my subsequent arguments. After all, I am trying to determine whether Hart's approach to analysing internal legal statements can be defended; my goal is not to evaluate Raz's own views. Thanks to Antony Hatzistavrou for asking me to clarify this issue.
67. See 'The Purity of the Pure Theory', above n 8 at 454-5;
68. 'Hart on Moral Rights and Legal Duties', above n 38 at 130-1.
69. 'The Purity of the Pure Theory', ibid at 453, 457.
70. My experience of presenting this article in Oxford tells me that I am making a controversial claim here. The local lore there (and perhaps elsewhere as well) seems to be that Hart never thought that internal legal judgements involve what Raz calls full acceptances, but only weak acceptances. This was certainly the position that Hart adopted in his writings of the early 1980s. I believe that Hart changed his mind (in my view, mistakenly) between the time of The Concept of Law and his later writings. I hope my discussion in ss 8-10 of this article makes a plausible case for this reading.
71. The Concept of Law, above n 1 at 57.
72. Ibid at 116.
73. 'The Purity of the Pure Theory', above n 8 at 454-455.
74. 'Commands and Authoritative Reasons' (1982) in Essays on Bentham, above n 11 at 265.
75. Ibid at 266;
76. cf. 'Legal Duty and Obligation', above n 14 at 159-160.
77. 'Commands and Authoritative Reasons', above n 46 at 267.
78. Ibid at 268.
79. Hart's explicit characterization of acceptance in the postscript to The Concept of Law can be read to convey this deflated conception of acceptance: '[Acceptance] consists in the standing disposition of individuals to take [some] patterns of conduct both as guides to their own future conduct and as standards of criticism which may legitimate demands and various forms of pressure for conformity'. The Concept of Law, above n 1 at 255.
80. Raz may respond by pointing out that such statements are not normally formulated in deontic predicates, whereas legal statements are. Several sentences in the above-quoted passage from 'The Purity of the Pure Theory', especially the last sentence, indicate that Raz saw a special need to explain uses of deontic predicates in legal discourse.
81. See also Raz, Practical Reason and Norms, above n 12 at 154-6, 163, 169-70;
82. The Authority of Law, above n 12 at vii;
83. 'Sources, Normativity, and Individuation', above n 12 at 230, 234-5;
84. 'Hart on Moral Rights and Legal Duties', above n 38 at 129-31;
85. Hart, The Concept of Law, above n 1 at 203;
86. 'Legal Duty and Obligation', above n 14. Raz's point may be that all deontically-formulated objective- or categorical-reason-giving statements are moral statements. This counter-response, however, would run up against Hart's very plausible theses that the original and natural home of deontic concepts like 'obligation' and 'right' is law, not morality, and that the wholesale deployment of such concepts in internal moral discussions may be inappropriate and even blinding.
87. See Hart, 'Legal and Moral Obligation' in A.I. Melden (ed.), Essays in Moral Philosophy (Seattle: University of Washington Press 1958).
88. Thanks to Grant Lamond for urging me to address the relevant passages of 'Legal Duty and Obligation'.
89. 'Legal Duty and Obligation', above n 14 at 156.
90. Ibid at 159-60.
91. I have already pointed out and criticized Raz's assumption that (i) is also equivalent to or largely overlaps with a third distinction - namely, the distinction between moral statements and expressions of subjective interests or preferences. What Hart says at the beginning of the second long passage from 'Legal Duty and Obligation' that I quoted above suggests that Hart himself did not make this particular mistaken assumption. But there are some passages in his writings that point in the other direction. For instance, in the following passage in 'Commands and Authoritative Legal Reasons', 266-7, Hart seems to run all three distinctions together: Of course if it were the case, as a cognitive account of duty would hold it to be, that the statement that the subject has a legal duty to act in a way contrary to his interests and inclination entails, the statement that there exist reasons which are 'external' or objective, in the sense that they exist independently of his subjective motivation, it would be difficult to deny that legal duty is a form of moral duty. At least this would be so if it is assumed that ordinary non-legal moral judgements of duty are also statements of such objective reasons for action. For in that case, to hold that legal and moral duties were conceptually independent would involve the extravagant hypothesis that there were two independent 'worlds' or sets of objective reasons, one legal and the other moral.
92. There is some indication that Hart was more open to the 'extravagant hypothesis' in his earlier years. See 'Kelsen's Doctrine of the Unity of Law', above n 14 at 322.
93. See Simon Blackburn, 'Errors and the Phenomenology of Value' (1985) in Blackburn, Essays in Quasi-Realism (Oxford: Oxford University Press 1993).
94. See ibid;
95. Gibbard, Wise Choices, Apt Feelings, above n 27 at ch 8.
96. See e.g. The Concept of Law, above n 1 at 203, 231-2;
97. 'Commands and Authoritative Reasons', above n 46.
98. Both John Finnis and John Gardner pressed me to address this objection. Their questions also made me realize that some worries that Les Green raised about an earlier draft of my 'Hart's Expressivism and His Benthamite Project' were motivated by the same objection. I tried to address Green's worries in s V of that article, but now realize that I may not have done so satisfactorily. I hope that what I say in the text will be a more adequate treatment.
99. The Concept of Law, above n 1 at 203.
100. See Practical Reason and Norms, above n 12 at 211;
101. 'Legal Validity', above n 12 at 155.
102. I have not sought in the following pages to go beyond Raz's characterizations of Kelsen's views. My acquaintance with Kelsen's vast oeuvre is rather limited, and so far has been filtered largely through Raz's interpretations. Moreover, some Kelsen scholars have disputed Raz's interpretations of Kelsen's views. See Bulygin, 'Enunciados Juridicos y Positivismo', above n 18;
103. Roberto J. Vernengo, 'Kelsen's Rechtssätze as Detached Statements' in Richard Tur and William Twining (eds), Essays on Kelsen (Oxford: Clarendon Press 1986). For these reasons, what I refer to in the following paragraphs as Kelsen's views should be taken as a shorthand for Kelsen's views as Raz construes them.
104. Practical Reason and Norms, above n 12 at 154-5, 163. In many places, Raz also says that the problem of the normativity of law has to do with explaining why normative language is used in legal discourse.
105. See e.g. ibid, at 154-6, 163, 169-70;
106. The Authority of Law, above n 12 at vii;
107. 'Sources, Normativity, and Individuation', above n 12, at 230, 234-5. I believe that this is largely a red herring, resulting most likely from: (i) the unwarranted assumption that the true home of normative language is morality; and (ii) the perennial concern of legal philosophers to spot any non-contingent connection between law and morality.
108. See 'Kelsen's Theory of the Basic Norm', above n 14 at 134;
109. cf 'Legal Validity', above n 12 at 150.
110. See Practical Reason and Norms, above n 12 at 170.
111. See Raz, 'Kelsen's Theory of the Basic Norm', above n 14 at 134;
112. Practical Reason and Norms, above n 12 at 170.
113. Ibid at 154 70;
114. cf Finnis, Natural Law and Natural Rights, above n 12 at 23-4.
115. Raz has had a varied and complex history with the two approaches. In a 1974 article, Raz enumerates Kelsen's reasons for adopting the justificatory approach, and says that Kelsen's legal theory is the best existing theory following the justificatory approach. 'Kelsen's Theory of the Basic Norm', above n 14 at 145.
116. In the same article, Raz says that Hart's The Concept of Law provides the most successful deployment of the explanatory approach in explaining the normativity of law: Ibid at 134.
117. In his 1975 book, Practical Reason and Norms, Raz says that explanations following the explanatory approach 'come nearer the truth' than those following the justificatory approach: Above n 12 at 170.
118. Between 1975 and 1977, Raz seems to have abandoned the explanatory approach and adopted something like Kelsen's account. In a 1977 article, 'Legal Validity', Raz adopts the justificatory approach without explicitly endorsing Kelsen's reasons or giving independent reasons: above n 12.
119. The 1974 and 1977 articles are reprinted in Raz's 1979 book The Authority of Law as essays 7 and 8, respectively: Above n 12.
120. In the preface to that book, Raz says: The best positivist explanation of the use of normative language in law was suggested by Kelsen...'; ibid at vii. I am inferring from this history that Raz largely endorses Kelsen's reasons for favouring the justificatory approach.
121. The Pure Theory of Law (Berkely and Los Angeles: University of California Press 2nd edn, Max Knight trans., 1967) at 19,
122. quoted in Raz, 'Kelsen's Theory of the Basic Norm', above n 14 at 135.
123. The Pure Theory of Law, ibid at 19-20.
124. 'Kelsen's Theory of the Basic Norm', above n 14 at 135.
125. The Pure Theory of Law, above n 68 at 218,
126. quoted in 'Kelsen's Theory of the Basic Norm', ibid at 136.
127. 'Kelsen's Theory of the Basic Norm', above n 14 at 136;
128. cf 'The Purity of the Pure Theory', above n 8 at 451.
129. Kelsen's Theory of the Basic Norm', ibid at 137.
130. See 'Kelsen's Theory of the Basic Norm', ibid at 141;
131. Practical Reason and Norms, above n 12 at 171;
132. 'Sources, Normativity, and Individuation', above n 12 at 237.
133. See Raz, 'Kelsen's Theory of the Basic Norm', above n 14 at 135, 143, 145.
134. 'Legal Duty and Obligation', above n 14 at 144.
135. The Concept of Law, above n 1 at vi, 82-3.
136. Practical Reason and Norms, above n 12 at 170-7.
137. This attitude seems to offer an explanation of a rather amusing aside in Hart's account of his public meeting with Kelsen: I should like to record the fact that our discussion had its entertaining moments... The second was towards the end of our debate, when upon Kelsen emphasizing in stentorian tones, so remarkable in an octogenarian (or in any one), that 'Norm was Norm' and not something else, I was so startled that I (literally) fell over backwards in my chair. 'Kelsen Visited' (1963) in Essays in Jurisprudence and Philosophy, above n 5 at 287. Hart does not explain what comments of his occasioned this emphasis by Kelsen.
138. See The Pure Theory of Law (1st edn, 1934) published as Introduction to the Problems of Legal Theory (Oxford: Clarendon Press, B.L. Paulson and S.L. Paulson trans., 1992) at chs 1, 3;
139. General Theory of Law and State (Cambridge, MA: Harvard University Press, Anders Wedberg trans., 1945) at ch. 12;
140. The Pure Theory of Law, above n 68 at chs 1, 3.
141. In other words, Kelsen seems to have been unmindful of the distinction between straight and oblique analyses of normative statements that I discussed earlier.
142. See e.g. Dworkin, 'The Model of Rules II' (1972) in Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press 1977);
143. Law's Empire (Cambridge, MA: Harvard University Press 1986);
144. 'Objectivity and Truth: You'd Better Believe It' (1996) 25 Philosophy and Public Affairs.
145. See Fuller, 'Human Purpose and Natural Law' (1956) 53 The Journal of Philosophy;
146. Finnis, Natural Law and Natural Rights, above n 12 at ch. 1.
147. See Raz, 'The Problem about the Nature of Law' (1983) in Raz, Ethics in the Public Domain, above n 31 at 192-3;
148. 'Authority, Law, and Morality' (1985) in Ethics in the Public Domain ibid at 219-21;
149. 'Two Views of the Nature of the Theory of Law: A Partial Comparison' (1998) in Jules Coleman (ed.), Hart's Postscript (Oxford: Clarendon Press 2001) at 21-2.
150. The following key passage from one of the endnotes to ch. 1 of Finnis's Natural Law and Natural Rights, above n 12 at 21, bears this out: The fact that, as I have argued in this chapter, the descriptive theorist needs the assistance of a general normative theory in developing sufficiently differentiated concepts and reasonable standards of relevance does not eliminate the different uses to which the more or less common stock of theoretical concepts will be put by the normative and the descriptive (historical) theorists, respectively.