In my previous post in this series, I gave a rough outline of Austin’s views and a number of criticism levelled against it. Now, I’ll reveal my hand: All those criticisms were levelled by HLA Hart in his book: The concept of law. Hart’s theory of law is therefore founded on the very same criticisms made of Austin’s theory. In this post, I’ll quickly gloss over the criticisms and use those criticisms as a springboard from which I can describe Hart’s theory. After describing Hart’s theory (which I think is mostly right), I will point out the one or two differences I have with Hart and develop my own theory of law.
Hart’s concept of law
Recall that according to Austin, laws are coercive commands given by a sovereign. I previously wrote that there were various laws which did not fit that model. Among them were:
3. Continuity of the law
…there is often a rule of succession to designate the political heir…
4. Contracts and Nullity
Contract law is a significant body of law that is obviously law, yet doesn’t fit very well into the framework of coercive commands…what contract law does is empower private citizens to call on state resources to force compliance in some cases…Such commands are not aimed at the people who would be forced to comply with contracts. Rather it is aimed at officials giving them instructions in how to deal with a certain class of disputes
5. Public power conferring rules
…rules set out the limits and the roles of the various branches of government…
6. Procedural rules.
…There are rules that set out procedures that should be followed, for example, in order for a proposed piece of legislations to become law…
The solution to all of this is to make a certain kind of modification to Austin’s theory. A law is any rule that is part of a legal system. A legal system is one that consists of the union of primary and secondary rules. Primary rules are our familiar coercive rules, the paradigmatic case being those rules found in the body of criminal law. Secondary rules are rules that pertain to primary rules either immediately or through other secondary rules. The secondary rules include private and public power conferring rules, rules of recognition and rules of succession among others.
To illustrate let us think of a society which has primary rules, but no secondary rules. There are rules which are enforced, but there is no rule (or set of rules) that points out the source of the law. The primary rules just are and could be drawn from anywhere and promulgated by anybody. In certain extreme cases, enforcement may not be conducted by any one person, but by the society as a whole or with some kind of communal monitoring system that keeps these rules enforced. While it is logically possible that the primary rules in such a society may change, there does not seem to be any definite set of rules or procedures that could be taken to change the primary rules.
Given the above sketch of a system with only primary rules, Hart argues that it cannot count as a legal system if it doesn’t set out at least roughly what the sources of law are, what the enforcement mechanisms are, what the procedures for changing the primary rules are etc. The greater the degree to which these various features are present, the more it looks like a legal system. The greater the degree to which a system lacks the various secondary rules, the more problematic calling such a system a legal system becomes. Hart calls such primary-rule only systems pre-legal systems: societies which have pre-legal systems often face certain problems which they develop secondary rules (and thus full blown legal systems) in order to solve.
One good thing about the idea of a legal system as a system of rules is that it solves another problem faced by the Austinian theory:
1. The generality of the commands.
…a general command for everybody to X on pain of punishment is a law while a specific command for John Smith to do X would not count as a law. Austin’s theory does not really account for the difference…
The notion of rules carries a connotation of generality in a way that the notion of a command doesn’t. It seems intuitively odd to talk about rules concerning only Bob. It doesn’t seem so odd to talk about commands directed only at Bob.
There is a second distinction that Hart brings up regarding the notion of rules: Hart argues that there is a difference between following a rule and habitual obedience to a sovereign. He illustrates the difference with the following example: If it is merely a habit that I wake up at 7.30 in the morning, on days that I don’t all that means is that on that day I didn’t. By contrast if I think of waking up at 7.30 as a rule, then when I fail to wake up at 7.30, I would think that I have grounds to criticise myself. The difference between a habit and a rule, therefore (according to Hart), can only be understood from an internal point of view. Rules therefore are capable of providing reasons for people to act on them.
Finally, a legal system is not just any old set of primary and secondary rules, but that set of rules in which the rules of recognition are widely accepted by the relevant officials (e.g judges). Is there a problem with officials that is similar to that faced by Austin’s theory vis-a-vis sovereignty?
2. Who is the sovereign?
There is a very real difficulty in pointing out who the sovereign is in more modern constitutional democracies. I will use the american system as a model because it is quite complicated. Here are some candidates
- The People
- The legislature
- The executive
- The judiciary
- The constitution
- The legislature, executive and judiciary are jointly sovereign.
- Some other combination of the above are jointly sovereign
Basically, we will not get the same problem with officials for two reasons:
Firstly because the offices that the officials occupy are themselves defined by certain other rules.
The second related reason is that the people in general recognise the officials as legitimate.
How are the two reasons related? That has to do with the internal point of view. If there are officials, then there has to be a rule that separates officials from non-officials. Non-officials, when they accept this rule will recognise who the officials are. Of course, in the internal point of view of one who has accepted such a rule recognising officials, one regards that official as legitimate in his/her role in identifying the sources of law and properly implementing it (or directing others to do so) The advantage is that no one is disqualified from officialdom on the basis that said official is also limited by laws.
Criticism and My Own Views
Thus finishes my description of Hart’s views. Now, as you can tell (and as I’ve mentioned before) I mostly agree with Hart. My chief disagreement with Hart stems from his use of the internal point of view. As I’ve mentioned before, I subscribe to the psychopathic martian theory of concepts. Roughly, it is the idea that our concepts are inadequate if we are unable to explain the concept to a psychopathic martian. While fully understanding that we may be unable at times to reach such a high standard, the ideal is to aim for such clear concepts.
One kind of problem with the internal point of view is the ambiguity about what kinds of reasons to rules provide us with if we accept them. The notion of rules actually providing grounds for criticism rubs me the wrong way because we can always ask: what kind of criticism are such rules providing? What is the nature of legal reasons for action? Are they moral reasons? If they are not moral reasons, in what sense can they be said to be reason giving? Given the rather tall weeds that we are walking into here, it seems that it would be better if I could get rid of the notion. However, that means that I have to deal with the problem of differentiating following a rule from following from habit. In addition, I need to deal with how to identify officials.
1. Rules vs Habitual Obedience
Instead of saying that rules really do provide grounds for obedience and criticism, I will say instead that rules claim to provide grounds for obedience and criticism. Or alternatively, merely define legal reasons in such a way as it amounts to something like ‘A’ counts as a legal reason against X-ing if A is a legal rule according to which forbids X-like actions. But this is so transparently tautologous that it doesn’t really say anything interesting. So that when we have a rule, we will have people making claims about grounds for criticism etc, but this will say nothing about whether they really have such grounds for action or criticism.
2. Identifying Officials
Again, instead of talking about people accepting the rules that designate officials, I just note that the rules designating officials are connected to a coercively superior institution which makes a claim to having a monopoly on the legitimate use of force. There are three ideas here; rules being associated with institutions/organisations, coercive superiority and claims on the monopoly of legitimate use of force. Let me try to spell them out
a) A rule is connected with an organisation if members of the organisation by and large abide by those rules (qua rules rather than merely habitually)
b) It only makes a claim to have a monopoly on the legitimate use of force because it may not necessarily be clear whether or not the use of force by that organisation is in fact legitimate. All I want to say is that the organisation will claim that it is legitimate or justified etc
c) It is coercively superior in that I don’t want to say that it has an actual monopoly on the use of force (legitimate or otherwise) as there may be some people who do use force who have not been caught and punished yet. On the other hand, it is not just marginally more powerful than other coercive organisations, it comes rather close to having an actual monopoly on the use of force. Unauthorised force is quite likely to be retaliated against and there are few users of unauthorised force.