Herbert hart and the semantic sting

Legal Theory

Volumn 4, Issue 3, 1998, Pages 283-300

  Endicott, Timothy A O ^a  

^a UNIVERSITY OF OXFORD   (United Kingdom)

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EID: 77950031829     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325200001038     Document Type: Article

References (12)

1. Ronald Dworkin, Uws EMPIRE 45 (1986). I will refer to this work as LE in the text, with page numbers in parentheses.
2. H.L.A. Hart, THE CONCEPT OF LAW 246 (2d ed. with Postscript; Penelope A. Bulloch & Joseph Raz eds., 1994). I will refer to this work in the text as Concept, with page numbers in parentheses.
3. Cf. Concept, 17: “Its [the book's] purpose is not to provide a definition of law, in the sense of a rule by reference to which the correctness of the use of the word can be tested.” See abo Concept, 209.
4. Cf. the reference at Concept, 297 to Ludwig Wittgenstein, PHILOSOPHICAL INVESTIGATIONS (1953), sees. 208-38, At sec. 242 Wittgenstein writes, “If language is to be a means of communication there must be agreement not only in definitions but also (queer as this may sound) in judgments.
5. Here too Hart could agree with Wittgenstein: “… if a person has not yet got the concepts, I shall teach him to use the words by means of examples and by practice.-And when I do this I do not communicate less to him than I know myself.” Wittgenstein, Cf. the reference at Concept note 5, at sec. 208.
6. In TAKING RIGHTS SERIOUSLY (1977), Ch. 2.
7. More precisely, the best conception will yield a determinate outcome in any case unless there is a tie (which is inconceivable) or unless the preinterpretive materials which a conception must fit are too meager (which does not happen in any real legal system). For a recent discussion, see Ronald Dworkin, Objectivity and Truth: You'd Better Believe It, 25 PHIL. & PUB AFF 87,136-38 (1996).
8. The distinction Hart refers to is at Concept, 160; Hart discussed the same distinction in an introduction he wrote for Chaim Perelman, THE IDEA OF JUSTICE AND THE PROBLEM OF ARGUMENT, vii, viii (1963): “Justice is a concept of complex structure within which we should distinguish a constant formal element and a varying material element. This distinction might be presented in terms used in recent English moral philosophy as one between the constant definition of justice and the varying criteria for its application.”
9. Cf. TAKING RIGHTS SERIOUSLY, The distinction Hart refers to is at Concept note 9, at 136: “If the Court finds that the death penalty is cruel, it must do so on the basis of some principles or groups of principles that unite the death penally with the thumbscrew and the rack.”
10. Note that Hart begins THE CONCEPT OF LAW with some crazy claims about law (from Llewellyn, Holmes, Gray, Austin, and Kelsen; Concept, 1). He does not dismiss them as senseless-he describes them as seeming “strange and paradoxical” and says that “such statements are both illuminating and puzzling: they are more like great exaggerations of some truths about law unduly neglected, than cool definitions” (Concept, 2).
11. I think that this claim about their debate is consistent with what Dworkin says about the nature of concepts, since “the contrast between concept and conception is… a contrast between levels of abstraction at which the interpretation of the practice can be studied” (LE, 71). “Political philosophy thrives… in spite of our difficulties in finding any adequate statement of the concept of justice” (LE, 93). He implies that we could say the same about the concept of law.
12. So we could not have a “pivotal” dispute about whether someone with no hair is bald, or about whether someone 7'6” high is tall. I could still disagree with you even in a paradigm case, however, by making a crazy claim. There is no sharp distinction between pivotal disputes and disputes in which one party is making a crazy claim.