Abstract
The classic canons of the tradition of legal positivism suggest that officials forget that the authorizing origin of humanly posited laws is inaccessible to the language of humanly posited laws. The problematic of this tradition, then, has been to postulate an authorizing origin to humanly posited norms/rules, but the origin, to be an origin, must differ from the character of humanly authored laws. The origin must be external to what officials take as legal existence. Hart was more open than his predecessors were about the externality of the origin. He certainly was more conscious of the importance of the externality of the origin than are his supporters today. Indeed, there is a sense in which his commentators have unknowingly worked to conceal the externality of the origin. The objective of this chapter is to elaborate the nature of the forgotten origin and, as a consequence, to question the viability of important claims attributed to legal positivism.
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References
Ronald Dworkin, “Model of Rules 1” and “Model of Rules 11,” inTaking Rights Seriously(London: Harvard University Press, 1977), 14–45, 46–80.
Ronald Dworkin, “Is Law a System of Rules?” in ed. Ronald DworkinThe Philosophy of Law(Oxford: Oxford University Press, 1977), 38–65, at 64–5;Law’s Empire(Cambridge: Harvard University Press, 1986).
See, e.g., Joseph Raz, “Legal Principles and the Limits of Law,”Yale Law Journal81 (1972): 823–54.
Jules Coleman, “Authority and Reason,” in ed. Robert GeorgeThe Authority of Law: Essays on Legal Positivism(Oxford: Clarendon,) 287–319, 294; Coleman, “Rules and Social Facts,”Harvard Journal of Lau and Public Policy14 (1991): 703–25; and Jeffrie G. Murphy and ColemanPhilosophy of Law: An Introduction to Jurisprudence(Boulder: Westview, 1990), 22–5. Murphy and Coleman go so far as to suggest that even the non-legal or pre-legal world contains primary rules. Ibid., 28. Coleman’s essays are preoccupied with the rule of recognition and whether it includes or excludes morality. That the rule of recognition is the authorizing origins of the legal structure, albeit as a rule rationally constructed from “convergent social practices,” there is no doubt for Coleman. The rule of recognition is a social Hile, which Coleman defines as “a convergent social practice and a shared critical or reflective attitude towards the practice.”
Jules Coleman, “Authority and Reason” in ed. Robert P. GeorgeThe Autonomy of Law287–319. Also see my comments about Coleman’s essays in the Introduction.
Neil MacCormick, “Natural Law and the Separation of Law and Morals,” in ed. Robert P. George, Natural Law Theory: Contemporary Essays (Oxford: Oxford University Press, 1992), 105–33.
For earlier essays accepting the rule of recognition as the authorizing origin of the concept of law, see, e.g., Robert S. Summers, “Professor H.L.A. Hart’s Concept of Law,”Duke Law Journal(1963): 62960, at 632–45, and Norman E. Bowie, “The `War’ between Natural Law Philosophy and Legal Positivism,”Idealistic Studies145–55. For a more recent series of essays which examine the nature of the rule of recognition and whether a constitution is grounded in a rule of recognition, see Michelman, “Constitutional Authorship,” in ed. Larry AlexanderConstitutionalism: Philosophical Foundations(Cambridge: Cambridge University Press, 1998), 64–98; Michael Perry, “What is `the Constitution’? (and Other Fundamental Questions),” inConstitutionalism99–151; and Jeremy Waldron, “preconmiiunent and Disagreement” inConstitutionalism271–99.
Kent Greenawalt, “Hart’s Rule of Recognition and the United States,”Ratio Juris 1(1988): 40–57; Joseph RazThe Authority of Law(Oxford: Oxford University Press, 1979), andThe Morality of Freedom(Oxford: Oxford University Press, 1986). Also see Jules Coleman, “Second Thoughts and Other First Impressions,” in ed. Brian BixAnalyzing Law(Oxford: Clarendon, 1998): 257–322, 261.
See, e.g., Roger A. Shiner Norm and Nature: The Movements of Legal Thought(Oxford: Oxford University Press, 1992).
See, e.g., Neil MacCormick and Ota WeinbergerAn Institutional Theory of Law: New Approaches to Legal Positivism(Dordrecht: D. Reidel, 1986), 132, where they argue that there must be some values that ground emotive preferences. Even preferences need to be grounded in a theory of law. In hisH.L.A. Hart(London: Edward Arnold, 1981), 119, MacCormick argues that one can bring in customary rules as part of the rule of recognition or constitutive of it “provided we avoid the view that judgescannotpre-exist a power-conferring rule of adjudication, provided we accept that the judicial role depends on the concept of ”duty“ not on that of ”power.“
See, e.g., MacConnick and WeinbergerInstitutional Theory4, 129. Kent Greenawalt, “Too Thin and Too Rich: Distinguishing Features of Legal Positivism,” in ed. Robert P. GeorgeThe Autonomy of Law: Essays on Legal Positivism (Oxford: Oxford University Press1996): 1–29, 2.
H.L.A. HartThe Concept of Law(Oxford: Clarendon Press, 1961; 1994, 2nd ed.), 185–86.
lbid., 230.
See Greenawalt, “The Rule of Recognition and the Constitution,”Columbia Law Review85 (1987): 621–71.
HartThe Concept of Law44. Emphasis added.
For Raz, there may be several rules of recognition.
See, e.g., Hart, “Signs and Words” (reviewing J. HollowayLanguage and Intelligence) Philosophical Quarterly2 (1952): 59–62.
Coleman, “Truth and Objectivity in Law,”Legal Theory1 (1995): 33–68, 65.
Coleman, “Second Thoughts and Other First Impressions,” io ed. Brian Bix, Analyzing Law (Oxford: Clarendon Press, 1998), 257–322, 266.
Ibid., 140. Emphasis added.
Ibid., 102–3.
Ibid., 95.
Ibid., 92.
Ibid., 92.
Ibid., 201.
Hart distinguishes between Rex I, the absolute monarch, and Rex II, the son of Rex I. As for Rex II, “there is nothing to make him sovereign from the start. Only after we know that his orders have been obeyed for some time shall we be able to say that a habit of obedience has been established. Then, but not till then, we shall be able to say of any further order that it is already law as soon as it is issued and before it is obeyed. Till this stage is reached, there will be aninterregnumin which no law can be
made.“ HartConcept of Law53. Emphasis added.
Ibid., 170.
Ibid., 186.
Hart, “Kelsen Visited,”in Essays in Jurisprudence and Philosophy286–308, at 304–05.
Ibid., 290.
Hart, “Kelsen Visited,” 292.
Hart, “Signs and Words,”Philosophical Quarterly2 (1952): 59–62.
Hart, “Signs and Words,” 292.
Hart, “Signs and Words,” 292.
Hart, “Signs and Words,” 292.
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See, e.g., Kelsen, “Causality and Accounting” (1960), inEssays in Moral and Legal Philosophy(Ota Weinberger Intro.; Peter Heath trans.; Dordrecht: D. Reidel, 1973), 154–64, at 157–61; “Causality and Imputation” (1950) inWhat is Justice?(Berkeley: University of California Press, 1971), 324–49, at 327–30; “The Natural-Law Doctrine before the Tribunal of Science” (1949) inWhat is Justice?13773, at 137–38; “Causality and Retribution” (1941), inWhat is Justice?303–23, at 304–14; “The Emergence of the Causal Law from the Principle of Retribution” (1939), inEssays on Moral and Legal Philosophy165–215, at 166–84.
Hart, “Kelsen’s Doctrine of the Unity of Law,” 313.
HartConcept of Law83.
HartConcept of Law87.
HartConcept of Law88.
HartConcept of Law57.
See Hart’s criticism of this element of Kelsen’s pure theory in “Kelsen Visited,” 305.
See, e.g., HartConcept of Law57–61.
Ibid., 105. Hart indicates in “Problems of the Philosophy of Law,” in P. Edwards ed., Encyclopedia of Philosophy, vol. 6 (New York: Macmillan and Free Press, 1967), 264–76, that he is drawing from Richard Wasserstrom, who made much of the distinction in The Judicial Decision (Stanford: Stanford University Press, 1961).
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HartConcept of Law57.
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MacCormickH.L.A. Hart34.
Hart, “immorality and Treason,” in Richard Wasserstrom, ed.Morality and the Law(Belmont, CA: Wadsworth, 1971): 49–54, 51.
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HartThe Concept of Law89.
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Hart, “Kelsen Visited,” 307.
Hart, “Kelsen’s Doctrine of the Unity of Law,” 338.
Bernard Jackson, MakingSense of Jurisprudence(Liverpool: Deborah Charles, 1996), 89.
HattThe Concept of Law202.
HartConcept of Law153.
HartConcept of Law256.
HartConcept of Law 53.
HartConcept of Law154.
HartConcept of Law247
HartConcept of Law108.
HartConcept of Law109.
See esp. “Postscript,” in HartConcept of Law242, where he writes of a “non-participant external observer” who describes the manner in which participants view the law. The descriptive legal theorist must “understand” without endorsing the morality of the internal point of view accepted by the legal participant.
HartConcept of Law193–94.
HartConcept of Law109.
See esp. Hart, “Problems of the Philosophy of Law,” 268–69, and Richard WasserstromThe Judicial Decision.
See especially Hart, “Problems of Philosophy of Law.”
HartConcept of Law203.
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HartConcept of Law223.
HartConcept of Law 110.
See, e.g., MacCormick“The Concept of Lawand the Concept of Law,” in ed. Robert P. GeorgeThe Autonomy of Law163–93, 181: “lt [the rule of recognition] is a custom that sees the overall unity of authorization and hammers out priority as between rival authorizations, that alone can finally underpin an abstract constitution and make it constitutive of a going legal order.” Kent Greenawalt assumes the viability of the identity of “conventions” by seeking out the many different recognizable conventions at the state level in the United States. See Greenawalt, “The Rule of Recognition and the Constitution.”
HartConcept of Law95.
HartConcept of Law170.
HartConcept of Law101.
See discussion in HartConcept of Law66–67.
Hart, “Immorality and Treason,” 51.
See esp. Hart, “Are There Any Natural Rights?” in A.1. Melden, ed.Human Rights(Belmont, CA: Wadsworth, 1971), 49–54, 51.
HartConcept ofLaw, 185–86.
HartConcept of Law193–200.
Hart, “Positivism and the Separation of Law and Morals,” at 623Harvard Law Reviewand 464 of OlafsonSociety Law and Morality.
Hart, Concept of Law, 204.
Hart, Concept of Law, 57.
Hart, Concept of Law, 90.
Hart, Concept of Law, 53. Hart writes that, until the moment when a custom is inscribed, “there will be an interregnum in which no law can be made.”
Hart explains that a small community “closely knit by ties of kinship, common sentiment, and belief, and placed in a stable environment” needs to supplement “unofficial rules” because, first, such unofficial rules do not provide “a system” or structure; secondly, the rules are static; and thirdly, there is an inadequate institutional means to resolve private disputes (Concept of Law, 92–93). The remedy for these defects, according to Hart, “consists in supplementing the primary rules of obligation with secondary rules which are of a different kind” (94). Such a remedy “might, in itself, be considered a step from the pre-legal to the legal,” he continues.
Hart, Concept of Law, 59.
Hart, Concept of Law, 44–9.
See, by way of example and only as an example, Hart, Concept of Lair, 91–9.
Hart, Concept of Law, 103.
Hart, Concept of Law, 107.
Kant, Grounding of the Metaphysics of Morals, 462.
Hart puts the point this way: “The figure ofa bondbinding the person obligated¡ is buried in the word ‘obligation,’ and the similar notion of a debt laden in the word `duty.’¡ in this figure, whichhaunts[emphasis added] much legal thought, the social pressure appears as a chain binding those who have obligations so that they are not free to do what they want”(Concept of Law87).
See the references cited above, fns. 1–4, 6–7.
HartConcept of Law176.
HartConcept of Law154.
HartConcept of Law172.
HartConcept of Law105.
HartConcept of Law53.
HartConcept of Law98.
See, e.g., Greenawalt, “Too Thin and Too Rich: Distinguishing Features of Legal Positivism” in ed. Robert P. GeorgeThe Autonomy of Law1–29, 24; “Hart’s Rule of Recognition and the United States, 53–55; and ”The Rule of Recognition and the Constitution.“
HartThe Concept of Law66–7.
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Conklin, W.E. (2001). The Forgotten Origin: H.L.A. Hart’s Sense of the Pre-Legal. In: The Invisible Origins of Legal Positivism. Law and Philosophy Library, vol 52. Springer, Dordrecht. https://doi.org/10.1007/978-94-010-0808-2_9
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