Hart's concluding scientific postscript

Legal Theory

Volumn 4, Issue 3, 1998, Pages 301-328

  Moore, Michael ^a  

^a UNIVERSITY OF PENNSYLVANIA   (United States)

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EID: 85008228042     PISSN: 13523252     EISSN: 14698048     Source Type: Journal    
DOI: 10.1017/S135232520000104X     Document Type: Article

References (104)

1. The first salvo in this debate should probably be given to Lon Fuller in his exchange with Ernst Nagel. Lon Fuller, Human Purpose and Natural Law, 53 J. PHIL. 697-709 (1956). Hart responds to Fuller's arguments in his justly celebrated article, Positivism and the Sefmration of Law and Morality, 71 HARV. L. REV. 593-629 (1958). Fuller's response was Positivism and Fidelity to Law-A Reply to Professor Hart, 71 HARV. L. REV. 630-72 (1958). Hart restated his views in THE CONCEPT OF LAW (1961), and Fuller in THE MORALITY OF LAW (1964). Hart's response to the latter was Book Review The Morality of Law, 78 HARV. L. REV. 1281-96 (1965). Fuller's rejoinder is in THE MORALITY OF LAW (2d ed. 1969).
2. H.L.A. Hart, Postscript, in THE CONCEPT OF LAW (2d ed. 1994)
3. Id at239.
4. At a recent AALS Planning Committee Meeting organizing a mini-workshop on “Jurisprudence, one skeptical type suggested we just go by the tides of various professors in picking our participants; if their tide included the word “jurisprudence,” they were in.
5. I chart some of these affinities in Michael Moore, Law as a Functional Kind, in NATURAL LAW THEORY (Robert George ed., 1992). Others I chart in Moore, Legal Principles Revisited, 82 IOWA L. REV. 867-891 (1997).
6. John Austin, THE PROVINCE OF JURISPRUDENCE DETERMINED (1954).
7. Hart, THE PROVINCE OF JURISPRUDENCE DETERMINED note 2, at 239-40.
8. The first-year graduate students who took my and Waldron's introductory jurisprudence seminar in the Jurisprudence and Social Policy Program at UC-Berkeley introduced me to this reaction to Hart.
9. I describe such “modest” social science in Michael Moore, The Need for a Theory of Legal Theories, 69 CORNELL L. REV. 988-1013 (1984).
10. Hart, Positivism, I describe such “modest” social science in Michael Moore note 1, at 600-601.
11. Argued convincingly by Joseph Raz, THE CONCEPT OF A LEGAL S\STEM (2d ed. 1980).
12. Hart, THE CONCEPT OF LAW, Argued convincingly by Joseph Raz note 1, at ch. 7.
13. On whether there can be role-specific ethics, see Heidi Hurd, Justifiably Punishing the Justified, 90 MICH. L. REV. 2203-2324 (1992); Hurd, MORAL COMBAT (forthcoming).
14. Hart, CONCEPT, On whether there can be role-specific ethics note 1, at 115-17.
15. Id. at 56-57,84-85,115-17.
16. Id. at 115.
17. Michael Moore, A Natural Law Theory of Interpretation, 58 S. CAL. L. REV. 277-398 (1985). Ruth Gavison notices this separation in this work in her Comment, in ISSUES IN CONTEMPORARY LEGAL PHILOSOPHY: THE INFLUENCE OF H.LA. HART 26, n.5 (R. Gavison ed., 1987).
18. Hart, CONCEPT, A Natural Law Theory of Interpretation note 1, at 82,85.
19. Id at55-58.
20. Id. at 86.
21. Id.
22. Ronald Dworkin, Social Rules and Legal Theory, 81 YALE L. J. 855-890 (1972), reprinted as ch. 3 of TAKING RIGHTS SERIOUSLY (1978).
23. See, e.g., H.L.A. Hart, Morality and Reality, 25 N. Y. REV. BOOKS, 35-38 (March 9,1979
24. Hart, CONCEPT, Morality and Reality note 1, at 115.
25. Joseph Raz, carrying on Hart's style of external, general jurisprudence, also avoids this ethical question of internal jurisprudence. See Raz, Facing Up: A Rtbh, 62 S CAL. L REV 1153-1235, at 1170, n.28 (1989).
26. See generally Phil Soper, Choosing a Legal Theory on Moral Grounds, in PHILOSOPHY AND LAW (J. Coleman & E.F. Paul eds., 1987).
27. The kind of arguments Fuller and Hart glancingly consider in their 1958 debate. See Hart, Positivism, Choosing a Legal Theory on Moral Grounds note 1; Fuller, Positivism and Fidelity, Choosing a Legal Theory on Moral Grounds note 1.
28. Gerald Postema, BENTHAM AND THE COMMON LAW TRADITION (1986).
29. Argued for in A.W.B. Simpson, Common Law and Lagal Theory, in OXFORD ESSAYS IN JURISPRUDENCE (2d series, 1973).
30. Hart notices such empiricist-grounded normative arguments in CONCEPT, Argued for in A.W.B. Simpson note 1.
31. Hart, Postscript, Hart notices such empiricist-grounded normative arguments in CONCEPT note 2, at 240.
32. Ronald Dworkin, LAWS EMPIRE (1986), ch. 4.
33. Hart, Postscript, LAWS EMPIRE note 2, at 248-49.
34. Austin, Postscript note 6.
35. Dworkin, Postscript note note 34, at 31-35.
36. Hart, Postscript, Postscript note note 34 note 2, at 246.
37. Hart, CONCEPT, Postscript note 1, atv.
38. Id.
39. Hart, CONCEPT, Id. note 1, at 4.
40. Id. at 5.
41. Id.
42. Id.
43. Hart's later characterization in the article he wrote for Paul Edward's ENCYCLOPEDIA OF PHILOSOPHY. See H.LA Hart, Problems of the Philosophy of Law, 6 ENCYCLOPEDIA OF PHILOSOPHY 264-76 (Paul Edwards ed., 1967), reprinted in H.LA. Hart, ESSAYS IN JURISPRUDENCE AND PHILOSOPHY 91 (1983).
44. H.L.A. Hart, Definition and Theory injurisprudence, 70 L.Q. REV. 37-60 (1954), reprinted in Hart, ESSAYS, Hart's later characterization in the article he wrote for Paul Edward's ENCYCLOPEDIA OF PHILOSOPHY.note 46. Hart himself came to see that, like other Oxford ordinary-language philosophers of the time, he had merged force into meaning. SHart, Introduction, ESSAYS, Hart's later characterization in the article he wrote for Paul Edward's ENCYCLOPEDIA OF PHILOSOPHY. note 46, at 2-6. Hart also came to see that a purely semantic analysis even of more particular legal concepts usedwithin a legal system did not resolve the controversies that have arisen in the application of such concepts. Id. at 5.
45. Hart, Postscript, Definition and Theory injurisprudence note 2, at 247: Dworkin “seems to me to confuse the meaning of ‘law’ with the meaning of propositions of law.” See also Gavison, Definition and Theory injurisprudence note 17, at 26 (“Dworkin is weakening considerably the distinction between law and theory of law;… the law is what is binding on us, and a theory of law is our way of understanding what is binding on us”).
46. Natural kinds have been a frequently discussed topic in contemporary philosophy. For an introduction, see Michael Moore, The Semantics of Judging, 54 S.CAL.L. REV. 151-295 (1981).
47. I do not think that this answer actually works for Hart, but why it does not gets us too far ahead of the story. The bottom line I shall suggest in the Conclusion is this: Hart needed to have a functionalist essence to law, not a structural one, but this did not require him to abandon his descriptive kind of jurisprudence. Such a descriptive jurisprudence, however, will look quite different from Hart's because what it is describing will include some moral facts (about the ends of law) as well as some nonmoral facts (about the efficacy of certain kinds of social institutions in effecting the ends of law).
48. I discuss theories of “direct reference” (also called “Kirpke-Putnam semantics,” after two leading philosophical explications of it) in Moore, I do not think that this answer actually works for Hart, but why it does not gets us too far ahead of the story. note 17; Moore, I do not think that this answer actually works for Hart, but why it does not gets us too far ahead of the story. note 50.
49. Kg. Gilbert Ryle, THE CONCEPT OF MIND (1949); Richard Peters, THE CONCEPT OF MOTIVATION (1958).
50. H.L.A. Hart, The Ascription of Responsibility and Rights, 49 PROC. ARISTOTELEAN SOCY 171-94 (1949); Hart, Definition and Theory, THE CONCEPT OF MIND note 48; Hart, Positivism, THE CONCEPT OF MIND note 1.
51. See Moore, The Ascription of Responsibility and Rights note 17, at 291 n.25.
52. Hart, CONCEPT, The Ascription of Responsibility and Rights note 17 note 1, at 116. As Peter Hacker noted in his essay Hart's Philosophy of Law, in LAW, MORALITY AND SOCIETY: ESSAYS IN HONOUR OF H.LA. HART 1-25 (P.M.S. Hacker & J. Raz eds., 1977), this certainly looks like the kind of explicit definition of “law” that Hart throughout his career eschewed for more particular legal terms.
53. Hart on occasion did marshal other arguments against criterial definitions. In Ascription, CONCEPT note 54, Hart based his anti-criterial conclusion on (1) the case-law origins of legal concepts; (2) the lack of any unitary thing named by legal concepts; and (3) the supposedly nondescriptive use of legal concepts because of their ascriptive force. These themes are repeated in Definition and Theory, CONCEPT note 48, and in Hart, Analytic Jurisprudence in Mid-Twentieth Century: A Reply to Professor Bodenheimer, 105 U. PA. L. REV. 953-75 (1957).
54. On PCA semantics, see Moore, Hart on occasion did marshal other arguments against criterial definitions. note 50.
55. Hart, Positivism, On PCA semantics note 1. Hart later softened but did not eliminate the reliance on ordinary English semantics in the interpretation of statutes, in his Introduction, On PCA semantics note 48 and in his Problems, On PCA semantics note 46.
56. Hart, Positivism, Positivism, On PCA semantics note 1. note 1.
57. See text at Positivism nn. 30-46.
58. Dworkin, LAWS EMPIRE, See text at Positivism nn. note 34, at 13-14.
59. 7d.atl4.
60. Id.
61. 7d.at90.
62. See text at 7d.at90 note 10.
63. Dworkin, See text at 7d.at90 note note 34, at 4.
64. Id.
65. Id. at 18.
66. Id. at 18-19.
67. H.L.A. Hart, American Jurisprudence Through English Eyes: The Nightmare and the Noble Dream, 11 GA. L. REV. 969-89 (1977), reprinted in Hart, ESSAYS, Id. note 46, at 123.
68. This tight connection between judicial obligation and law held for the early Dworkin. See The Model of Rules, as ch. 2 of TAKING RIGHTS SERIOUSLY (1978), where Dworkin treats the question of whether principles are part of the law as equivalent to the question of whether principles are obligatory (rather than discretionary) with judges.
69. See the illuminating discussion of this possibility in Hurd, This tight connection between judicial obligation and law held for the early Dworkin. note 13.
70. See the discussion and citations in Joseph Raz, Hart on Moral Rights and Legal Duties 4 OXFORD J. LEGAL STUD. 123-31 (1984).
71. Andrei Marmor, INTERPRETATION AND LEGAL THEORY (1992).
72. Dworkin, INTERPRETATION AND LEGAL THEORY note 34, at 108-13.
73. See id. at 112, where Dworkin concludes that after we have shifted from one foot to the other and have our trousers fully on, law “must be understood as saying what judges should do in principle, unless circumstances are special in the way just noticed.” If “what judges should do in principle” is equated with their role-defined obligations, this is the position I describe in the text
74. As Lon Fuller exclaimed, “It is incredible to think that obligation can arise from some such morally inert fact.” What Fuller was milling against is a view of jurisprudence that regards its task as purely descriptive and then (unlike Hart and Raz) turns to the question of the obligatoriness of law and without more ado blithely assumes that law, of course, obligates obedience, at least prima facie.
75. For the argument against the classical theory of holding, see Michael Moore, Precedent, Induction, and Ethical Generalization, in PRECEDENT IN LAW (L. Goldstein ed., 1987). For the argument against plain-meaning interpretation of statutes, see Moore, As Lon Fuller exclaimed note 17; Moore, As Lon Fuller exclaimed note 50.
76. Gerald Postema argues that such values can make judging a kind of coordination game, in that each judge has these reasons to seek to coordinate his kind of judging with that of other judges. Postema, Co-ordination and Convention at the Foundation of Law, 11 T. LEGAL STUD 165-203 (1982).
77. Moore, Legal Principles, Gerald Postema argues that such values can make judging a kind of coordination game, in that each judge has these reasons to seek to coordinate his kind of judging with that of other judges. note 5.
78. Dworkin, Legal Principles note 72, and Hard Cases, 88 HARV. L. REV. 1057-1109 (1975), reprinted in TAKING RIGHTS SERIOUSLY, Legal Principles note 72.
79. Dworkin, Legal Principles note 72 note 34.
80. For this argument in greater detail, see Moore, Interpreting Interpretation, in LAW AND INTERPRETATION 27-28 (A. Marmor ed., 1995); Moore, The Interpretive Turn in Modern Theory: A Turn for the Worse?, 41 STAN. L. REV. 871-957, at 948-949 (1989). Herbert Hart was present when I presented a draft of the latter paper at All Souls College, Oxford, with Dworkin commenting; I gather I won Hart's assent (if not Dworkin's) on this point See Postscript, Legal Principles note 72 note note 2, at 241 n.15.
81. Moore, For this argument in greater detail note 17; Moore, For this argument in greater detail note 50; Moore, Interpretive Turn, For this argument in greater detail note 84; Moore, Do We Have an Unumtten Constitution}, 63 S. CAL. L. REV. 107-39 (1989). I apply such a realist semantics to moral discourse in Moore, Moral Reality, Wis. L. REV. 1061-1156 (1982); Moore, Moral Reality Revisited, 90 MICH. L. REV. 2424-2533 (1992).
82. Hart's old term for the provisional nature of semantic criteria. Hart, Ascription, For this argument in greater detail note 17; note 54.
83. We do need intimations that there is a kind, and we may use paradigms in a weak sense to make this discovery. The paradigm from which we learned of flatness, for example, may have been Earth's surface. As this example shows, such paradigms may turn out not to be instances of the kind once we develop a proper theory of the kind's nature. Such learning paradigms thus do not fix the meaning in the style of PCA semantics. See Moore, Hart's old term for the provisional nature of semantic criteria. note 50.
84. Moore, We do need intimations that there is a kind, and we may use paradigms in a weak sense to make this discovery. note 17.
85. See particularly Dworkin, Is There Really No Right Answer?, in Dworkin, A MATTER OF PRINCIPLE (1985).
86. Dworkin, Is There Really No Right Answer? note 34.
87. Hilary Putnam, The Meaning of “Meaning,” in Putnam, MIND LANGUAGE AND REALITY (1975).
88. Dworkin, The Meaning of “Meaning note 34, at 47.
89. An indexical intention is Putnam's term for the intention to refer to some kind of tiling, no matter what the nature of the kind may turn out to be. See Putnam, The Meaning of “Meaning note 34 note 91. A referential intention is Keith Donellan's name for such rigid designation of a particular or a kind. Donellan, Reference and Definite Descriptions, 75 PHIL. REV. 281-94 (1966).
90. In the famous “unborn widow” case, fee u Audley, the court took the phrase to be used attributively by the testator, which meant that the widow was not necessarilyjohn's present wife Mary or any other life in being at the time the will took effect
91. Putnam's example, the famous “unborn widow” case note 91.
92. Here some of those who have followed me in applying realistic semantics to propositions of law have disagreed. See David Brink, Legal Theory, Legal Interpretation, and Judicial Review, 17 PHIL. PUB. AFF. 105-48 (1988); Brink, Semantics and Legal Interpretation (Further Thoughts), 2 CANADIAN J. L. JURISPRUDENCE 181-91 (1989); Nicos Stavropoulos, OBJECTIVITY IN LAW (1996). Brink and StavTopoulos appear to believe that we are justified in using realist semantics for any discourse whose practitioners speak and argue as iftlieir concepts were theoretical terms. I think on the contrary that such a discourse necessarily degenerates into Dworkin's deep conventionalism, discussed below. For without the ontological commitments to kinds with natures, what is there to have a theory about except those deeply shared conventions Dworkin calls concepts? This is where Stavropoulos ends up, finding that the substantive theory that seeks to give the meaning of some legal concept is only “constrained by paradigmatic applications and abstract characterizations of the relevant practice of application.” Id. at 160.
93. Stavropoulos, Here some of those who have followed me in applying realistic semantics to propositions of law have disagreed. note 96, at 160, makes a loyal effort to show that Dworkin's theory “is perfectly compatible with K-P semantics.” Yet this stretches what Dworkin has said (particularly about interpretation) too far to be credible. Compare Ken Kress, The Interpretive Turn, 97 ETHICS 834-60 (1987), who sees more clearly the incompatibility between Dworkin's interpretive methodology and any version of realist semantics.
94. I document Dworkin's conventionalism in this regard in Moore, Metaphysics, Epistemology, and Legal Theory, 60 S. CAL. L. REV. 453-506 (1987).
95. Dworkin, I document Dworkin's conventionalism in this regard in Moore note 34, at 73.
96. Id at74.
97. Id.
98. Moore, Id. note 17, at 298-300; Moore, Id. note 98, at 471-73.
99. Dworkin, Id. note 17 note 34, at 75.
100. 104; Id.
101. Id. ch. 3.
102. This movable feast view of a practice's boundaries can indeed be accommodated within the Dworkin/Stavropoulos kind of interpretivism. As Dworkin himself puts this, “since even the preinterpretive stage requires interpretation, these boundaries around the practice are not precise or secure.” LAWS EMPIRE, 104; Id. note 34, at 425 n.22. What cannot be accommodated is the possibility of radical mistake, not at the boundaries, but root and branch. Thus, it is unclear how an interpretive practice (such as the internal jurisprudence of some legal culture is supposed to be) could move its boundaries sufficiently so as to recharacterize all of external jurisprudence as if it were interpretive of some culture's practice of law. Dworkin's attempt to do this to Hart's jurisprudence is hardly a reassuring example of such a possibility.
103. See text at This movable feast view of a practice's boundaries can indeed be accommodated within the Dworkin/Stavropoulos kind of interpretivism. nn. 26-27.
104. Dworkin, See text at This movable feast view of a practice's boundaries can indeed be accommodated within the Dworkin/Stavropoulos kind of interpretivism. nn. note 34, at 93.