The ineliminability of hartian social rules

Oxford Journal of Legal Studies

Volumn 31, Issue 3, 2011, Pages 603-623

  Sciaraffa, Stefan ^a  

^a MCMASTER UNIVERSITY   (Canada)

Author keywords

HLA Hart; Plans; Rule of change; Rule of recognition; Scott Shapiro; Social rules

Indexed keywords

EID: 80052434512     PISSN: 01436503     EISSN: 14643820     Source Type: Journal    
DOI: 10.1093/ojls/gqr017     Document Type: Article

References (37)

1. S Shapiro, Legality (Harvard University Press 2011)
2. WN Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, WW Cooke (ed) (Yale University Press 1919)
3. Though I assume here that the rules of recognition and change are both power-conferring, or in my terms, power-constituting norms, only the presentation of my argument rather than its substance would be affected if I were to accept Raz's views that only the rule of change is a power-conferring norm
4. See J Raz, The Authority of Law: Essays on Law and Morality (OUP 1979) 90-7
5. See HLA Hart, The Concept of Law (2nd edn, OUP 1994) 27-8 for his discussion of the nature of power-conferring norms
6. Shapiro (n 1) 43
7. See Hart (n 5) 55-8
8. Shapiro employs a similar strategy in defence of his planning theory. See Shapiro (n 1) 184-8. I cannot adjudicate here whether this strategy is an alternative to or merely a different way of describing Raz's strategy that employs the idea of detached rather than perspectival statements.
9. See HLA Hart, Essays on Bentham (OUP 1982) 153-61
10. J Raz, Practical Reasons and Norms (OUP 1975) 171-7
11. Cf LD D'Almeida, 'Legal Statements and Normative Language' (2011) 30 L Phil 167
12. Shapiro (n 1) 115
13. See eg, HLA Hart, 'The Separation of Law and Morals (1958) 71 Harv L Rev 593, 620-2
14. Raz would add yet a fourth response. His idea is that legal officials may compartmentalize their practical reasoning. A person might qua judge accept the legal system's secondary rules and reach the required judgments of legal and, hence, moral obligation, but qua private individual she need not accept the secondary rules nor be committed to the obligations they specify.
15. See J Raz, The Authority of Law (OUP 1979) 142
16. Hart (n 5) 116-17
17. Elsewhere, I challenge this Hartian view of the content of a legal system. I argue that though Hart rightly notes that such convergence is a necessary condition of the continuing existence of a legal system, further argument is required to support the separate claim that the laws of the legal system are determined by the convergent view of the rule rather than some other perspective, say, a morally idealized perspective, of the rule.
18. See S Sciaraffa, 'Two Perspectives on the Requirements of a Practice' in M Del Mar (ed), New Waves in Philosophy of Law (Palgrave Macmillan 2011) 209
19. See J Raz, 'Hart on Moral Rights and Legal Duties' (1984) 4 OJLS 123, 129-31
20. Shapiro (n 1) 113-15
21. Shapiro (n 1) 114
22. GJ Warnock, The Object of Morality (Methuen 1970) 44
23. A Marmor, Positive Law and Objective Values (OUP 2001) 4
24. Raz (n 14) especially ch 2
25. Marmor has a more ecumenical take on this distinction. On his view, some cases of rule-following are as Raz describes, but other cases are distinct from general reason following in some other way, eg they might be constitutive of the sort that he describes in great detail. Marmor (n 24) 2-7.
26. See also A Marmor, Social Conventions (Princeton University Press 2009)
27. Raz (n 14) 49-58
28. Marmor (n 24) 4
29. Shapiro (n 1) 104
30. See Hart (n 5) 255
31. See Shapiro (n 1) 118-233
32. Exemplars of both kinds of argument can be found in J Raz, 'Authority, Law and Morality' (1985) 68 Monist 295
33. Raz makes what I take to be an empirical claim when he asserts that the 'law claims authority' for he purports to establish this claim on the basis of observations of the statements and actions and legal officials
34. The rest of the article brings to the fore certain implications about law's nature that putatively follow as a matter of conceptual necessity from this first claim-namely, his Sources Thesis is correct
35. See, eg discussions of the under-enforcement of certain provisions of the United States Constitution in J Ely, Democracy and Distrust (Harvard University Press 1980)
36. L Sager, Justice in Plainclothes (Yale University Press 2006)
37. Shapiro (n 1) 208.