Trouble for legal positivism?

Legal Theory

Volumn 12, Issue 3, 2006, Pages 225-263

  Priel, Danny ^a  

^a YALE UNIVERSITY   (United States)

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EID: 77952847642     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S1352325206060083     Document Type: Article

References (29)

1. JOSEPH RAZ, Authority, Law, and Morality, in ETHICS IN THE PUBLIC DOMAIN: ESSAYS IN THE MORALITY OF LAW AND POLITICS 210, 235 (rev. ed. 1994) [the article hereinafter Raz, Authority, the book hereinafter ETHICS]; see also JOSEPH RAZ, The Problem about the Nature of Law, in ETHICS, at 195, 209; JULES L. COLEMAN, THE PRACTICE OF PRINCIPLE: IN DEFENCE OF A PRAGMATIST APPROACH TO LAW 177-178 (2001); JULIE DICKSON, EVALUATION AND LEGAL THEORY 57-69 and passim (2001); MATTHEW H. KRAMER, WHERE LAW AND MORALITY MEET 158, 236 (2004); Leslie Green, The Political Content of Legal Theory, 17 PHIL. SOC. SCI. 1, 15 (1987); ANDREI MARMOR, POSITIVE LAW AND OBJECTIVE VALUES 156 (2001); W.J. WALUCHOW, INCLUSIVE LEGAL POSITIVISM 21-23 (1994). Most of these writers alsomaintain what Stephen Perry calledmethodological positivism, i.e., that legal theory does not involve the theorist in moral evaluation of law, by stressing that the fact that something is important for understanding law does not imply that it is also morally commendable. For the distinction, see Stephen R. Perry, Hart's Methodological Positivism, in HART'S POSTSCRIPT: ESSAYS ON THE POSTSCRIPT TO THE CONCEPT OF LAW 311, 311 (Jules Coleman ed., 2001) [hereinafter HART'S POSTSCRIPT].
2. H.L.A. HART, THE CONCEPT OF LAW 244 (2nd ed. 1994).
3. Dworkin has made this claim in several writings. For his most recent take, specifically directed at Hart, see Ronald Dworkin, Hart's Postscript and the Nature of Political Philosophy, 24 OXFORD J. LEGAL STUD. 1 (2004). I will not consider Dworkin's arguments here.
4. Julie Dickson also thinks that Hart's theory rests on evaluative considerations. SeeDICKSON, Dworkin has made this claim in several writings. note 1, at 35 n.9. Unlike my own argument, Dickson's argument is not based on Hart's text. Rather, she believes her view is the only logically possible one, i.e., that all theorizing is necessarily evaluative and that therefore, Hart's protestations to the contrary notwithstanding, he must have relied on evaluative considerations when he devised his theory of law.
5. HART, Julie Dickson also thinks that Hart's theory rests on evaluative considerations. note 2, at 213.
6. I should also note that in a publication made between the first and second editions Hart made a brief comment that shows his allegiance to what I called the prevalent response much more clearly than anywhere else. See H.L.A. Hart, Comment, in ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY: THE INFLUENCE OF H.L.A. HART 35, 39 (Ruth Gavison ed., 1987) (“[the theorist's] analysis will be guided by judgments, often controversial, of what is important and will therefore reflect such meta-theoretic values and not be neutral among all values. But… there is nothing to show that this analysis is not descriptive but normative and justificatory”). I have argued elsewhere that some unpublishedmaterials that had been unearthed in Hart's recent biography hint that Hart was already aware of this point at the time of writing the first edition of The Concept of Law. See Danny Priel, Book Review, 16 KING'S C. L.J. 252, 255-256 (2005).
7. MARMOR, I should also note that in a publication made between the first and second editions Hart made a brief comment that shows his allegiance to what I called the prevalent response much more clearly than anywhere else. note 1, at 71.
8. Joseph Raz, Legal Positivism and the Sources of Law, in THE AUTHORITY OF LAW: ESSAYS ON LAW AND MORALITY 37, 46 (1979) [hereinafter AUTHORITY] (emphasis added).
9. John Gardner, Legal Positivism: 51/2 Myths, 46 AM. J. JURIS. 199, 201 (2001). Gardner explains that sources include non-merit-based (evaluative) consideration. Id. Gardner further adds a qualification for this thesis, which is irrelevant for our purposes.
10. See H.L.A. Hart, Legal and Moral Obligation, in ESSAYS INMORAL THEORY 82, 84 (A.I.Melden ed., 1958).
11. HART, Legal and Moral Obligation note 2, at 95. This must be inaccurate, because the rule of recognition recognizes the other secondary rules in addition to the primary rules, but this point is irrelevant for the current discussion.
12. (emphasis added). It should be admitted that even in the original text of the book, some statements suggest that the rule of recognition identifies only the sources of legal norms, not legal norms. See, e.g., id. at 101.
13. ANDREI MARMOR, INTERPRETATION AND LEGAL THEORY 95 (2d ed. 2005). As Marmor makes clear, to identify “the law” on a certain question is to identify the valid legal norm on that question in that jurisdiction. See id. at 3.
14. See text accompanying note 10 INTERPRETATION AND LEGAL THEORY 95. Leslie Green expressed the same view. See Leslie Green, Legal Positivism, in THE STANFORD ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., Spring 2003), at http://plato.stanford.edu/entries/legal-positivism (“Legal positivism is the thesis that the existence and content of law depends on social facts and not on its merits.”) (emphasis added).
15. See, e.g., Joseph Raz, The Rule of Law and Its Virtue, in AUTHORITY, text accompanying note 10 INTERPRETATION AND LEGAL THEORY 95. note 10, at 210, 214 (“if the law is to be obeyed it must be capable of guiding the behaviour of its subjects”); KRAMER, text accompanying note 10 INTERPRETATION AND LEGAL THEORY 95. note 1, at 6 (“virtually any legal positivist… would ascribe to law[] the function of guiding conduct”); HART, text accompanying note 10 INTERPRETATION AND LEGAL THEORY 95. note 2, at 249. Beyond this, the guidance by law after identifying valid legal norms (and notmerely legal materials) is the central plank of the arguments for exclusive legal positivism in Raz, Authority, text accompanying note 10 INTERPRETATION AND LEGAL THEORY 95. note 1, at 231; Scott J. Shapiro, On Hart's Way Out, in HART'S POSTSCRIPT, text accompanying note 10 INTERPRETATION AND LEGAL THEORY 95. note 1, at 149, 177-182.
16. See HANS KELSEN, AN INTRODUCTION TO THE PROBLEMS OF LEGAL THEORY §50 (Bonnie Litschewski Paulson & Stanley L. Paulson eds., 1992) (1934). Later in life he rejected this view. See HANS KELSEN, GENERAL THEORY OF NORMS 213-214 (Michael Hartney trans., 1991) (1979). For Hart's claim, see HART, The Rule of Law and Its Virtue note 2, at 95, 101. This is the only aspect Hart mentions in which the rule of recognition of a modern legal system is more complex than the rule of recognition of a more “simple” legal system, where “simple acceptance of an authoritative text… brings with it many elements distinctive of law.” Id. at 95.
17. RONALD DWORKIN, LAW'S EMPIRE 90 (1986).
18. Gardner, LAW'S EMPIRE note 11, at 225.
19. Brian Leiter, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence, 48 AM. J. JURIS. 17, 34-35, 42-43 (2003). This is close to Hart's view as it is quoted in text accompanying note 2 LAW'S EMPIRE note 11.
20. See MARMOR, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence note 16, at 115 (“understanding a rule consists in the ability to specify what actions are in accord with the rule, which is not exhibited by ‘obeying the rule’ or ‘going against it’, that is, in practice.”). The claim that while interpretation is evaluative, understanding is not is also defended in id. at 112-118, and inMARMOR, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence note 1, at 72-78. I believe my argument is successful even if Marmor's Wittgensteinian arguments against Dworkin and Fuller are successful, although, for reasons I cannot detail here, I think they are not. More generally, I agree with Brian Bix that “[m]ost, if not all, of the problems in law and legal theory occur at a different level of abstraction (or in a different area of philosophy altogether) from Wittgenstein's rule-following considerations.” Brian Bix, The Application (and Mis-Application) of Wittgenstein's Rule-Following Considerations to Legal Theory, 3 CAN. J.L. & JURISPRUDENCE 107, 115 (1990).
21. MARMOR, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence note 16 note 1, at 51.
22. Shapiro, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence note 16 note 1 note 18, at 177. Additional arguments appear in Raz's earlier writings, but I agree with Stephen Perry that they are in fact the familiar argument from authority in “inchoate and incomplete” form. Stephen R. Perry, The Varieties of Legal Positivism, 9 CAN. J.L. & JURISPRUDENCE 361, 366 (1996) (book review). Besides those, Raz has argued that exclusive positivism fits prevailing understandings of law better. See Joseph Raz, Incorporation by Law, 10 LEGAL THEORY 1 (2004). But then some inclusive legal positivists have made exactly the opposite claim. See, e.g., WALUCHOW, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence note 16 note 1 note 1, at 158-159. Without empirical support it is hard to assess these claims.
23. Shapiro, Beyond the Hart/Dworkin Debate: The Methodology Problem in Jurisprudence note 16 note 1 note 18 note 18, at 178 n.57.
24. Wittgenstein tells about a French politician who said that French was the most natural language because sentences in it are structured in the same way as one thinks. See LUDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS §336 (G.E.M. Anscombe trans., 2nd ed. 1958).
25. See Hart's discussion of the rule of recognition in modern legal systems (with particular reference to the law in the U.K. and the U.S.) in HART, Wittgenstein tells about a French politician who said that French was the most natural language because sentences in it are structured in the same way as one thinks. note 2, at 94-95, 105-106.
26. Dworkin is explicit that this is what he thinks of genuine legal disagreements: “We argue for our constitutional interpretations by offering the best and most honest case we can for their superiority to rival interpretations, knowing that others will inevitably reject our arguments and that we cannot appeal to shared principles of either political morality or constitutional method to demonstrate that we are right.” Ronald Dworkin, The Arduous Virtue of Fidelity: Originalism, Scalia, Tribe, and Nerve, 65 FORDHAM L. REV. 1249, 1258-1259 (1997) (emphasis added).
27. Hart, Dworkin is explicit that this is what he thinks of genuine legal disagreements: “We argue for our constitutional interpretations by offering the best and most honest case we can for their superiority to rival interpretations, knowing that others will inevitably reject our arguments and that we cannot appeal to shared principles of either political morality or constitutional method to demonstrate that we are right. note 2, at 116 (“There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand, those rules of behaviour [i.e., primary rules]…, and, on the other, its rules of recognition…”). Hart does discuss the possibility of a gradual disintegration of a legal system, see id. at 118, but he does not consider the possibility discussed in the text.
28. See AHARON BARAK, JUDICIALDISCRETION 131 (Yadin Kaufman trans., 1989) (1987) (noting that in deciding a case, the judge is “on his own”); cf. William J. Brennan Jr., The Constitution of the United States: Contemporary Ratification, 27 S. TEX. L. REV. 433, 434 (1986). For judicial admissions that they have no way of being sure of the rightness of their decisions, see BENJAMIN N. CARDOZO, THE PARADOXES OF LEGAL SCIENCE 80-81 (1928); Brown v. Allen, 344, U.S. 443, 540 (1953) (Jackson, J. concurring).
29. COLEMAN, JUDICIALDISCRETION 131 note 1, at 68-69, 73, 103.