CHAPTER FOUR:LAW AS THE UNION OF PRIMARY AND SECONDARY RULES

H.L.A. Hart’s theory represents the present state of legal positivism today. This does not mean that no improvements have been made since his theory was first formulated and presented to the public in a complete form in 1961. It is simply that these improvements have been minor. They do not pose a challenge to his system and in fact can be incorporated within it. The content of the theory remains in accordance with Hart’s basic original intuition that law comprises a union of primary and secondary rules.

I. METHODOLOGY

Hart’s methodology can be divided into a theory of definition and a theory of law. He greatly developed both topics and his methodology, just like his version of legal positivism, remains the dominant method of analytic philosophy today.

A. Theory of Definition

Hart first introduced his theory of definitions in his inaugural lecture as Holder of the Chair of Jurisprudence at Oxford in his article entitled: “Definition and Theory in Jurisprudence.” He formulated the problem of his article thus:

“Questions such as those I have mentioned, ‘What is a State?’, ‘What is the law?’, ‘What is a right?’, have great ambiguity. The same form of words may be used to demand a definition or the cause or the purpose or the justification or the origin of a legal or political institution. But if, in the effort to free them from this risk of confusion with other questions, we rephrase these requests for definitions as ‘What is the meaning of the word “State”?’, ‘What is the meaning of the word “right”?’, those who ask are apt to feel uneasy, as if this had trivialized their question. For what they want cannot be got out of a dictionary, and this transformation of their question suggests it can. This uneasiness is the expression of an instinct which deserves respect: it emphasizes the fact that those who ask these questions are not asking to be taught how to use words in the correct way. This they know and yet are still puzzled. Hence it is no answer to this type of question merely to tender examples of what are correctly called rights, laws, or corporate bodies, and to tell the questioner if he is still puzzled that he is free to abandon the public convention and use words as he pleases. For the puzzle arises from the fact that though the common use of these words is known, it is not understood; and it is not understood because compared with most ordinary words these legal words are in different ways anomalous. Sometimes, as with the word ‘law’ itself, one anomaly is that the range of case to which it is applied has a diversity which baffles the initial attempt to extract any principle behind the application, yet we have the conviction that even here there is some principle and not an arbitrary convention underlying the surface differences; so that whereas it would be patently absurd to ask for elucidation of the principle in accordance, with which different men are called Tom, it is not felt absurd to ask why, within municipal law, the immense variety of different types of rules are called law, nor why municipal law and international law, in spite of striking differences, are so called.”1

Just as Kelsen, Hart was wary of political bias infecting his analysis of law. He called this mistaken methodology, the anomaly of “theory growing on the back of definitions.” Consequently he strove for neutrality.

“Hence, though theory is to be welcomed, the growth of theory on the back of definition is not. Theories so grown, indeed, represent valuable efforts to account for many puzzling things in law;

1 H.L.A. Hart, “Definition and Theory in Jurisprudence,” Essays in Jurisprudence and Philosophy, Oxford: Clarendon Press, 1983, pp. 21-22.

and among these is the great anomaly of legal language—our inability to define its crucial words in terms of ordinary factual counterparts. But here I think they largely fail because their method of attack commits them all, in spite of their mutual hostility, to a form of answer that can only distort the distinctive characteristics of legal language.”2

His definition of a ‘legal right’ is therefore as follows:

“I would, therefore, tender the following as an elucidation of the expression ‘a legal right’:

(1) A statement of the form ‘X has a right’ is true if the following conditions are satisfied:

(a) There is in existence a legal system.(b) Under a rule or rules of the system some other person Y is, in the events which have

happened, obliged to do or abstain from some action.(c) This obligation is made by law dependent on the choice either of X or some other

person authorized to act on his behalf so tahe either Y is bound to do or abstain from some action only if X (or some authorized person) chooses otherwise.

(2) A statement of the form ‘X has a right’ is used to draw a conclusion of law in a particular case which falls under such rules.”3

B. Legal Theory

Hart’s methodology may be considered as a combination of conceptual analysis and descriptive sociology. Indeed his book, The Concept of Law provides an elucidation of these methods in his attempt to analyze the concept “law”.

“My aim in this book has been to further the understanding of law, coercion, and morality as different but related social phenomena. Though it is primarily designed for the student of jurisprudence, I hope it may also be of use to those whose chief interests are in moral and political philosophy, or in sociology, rather than in law. The lawyer will regard the book as an essay in analytical jurisprudence, for it is concerned with the clarification of the general framework of legal thought, rather than with the criticism of law or legal policy. Moreover, at many points, I have raised questions which may well be said to be about the meaning of words. Thus I have considered: how ‘being obliged’ differs from ‘having an obligation’: how the statement that a rule is a valid rule of law differs from a prediction of the behaviour of officials; what is meant by the assertion that a social group observes a rule and how this differs from and resembles the assertion that its members habitually do certain things. Indeed, one of the central themes of the book is that neither law nor any other form of social structure can be understood without an appreciation of certain crucial distinctions between two different kinds of statements, which I have called ‘internal’ and ‘external’ and which can both be made whenever social rules are observed.

Notwithstanding its concern with analysis the book may also be regarded as an essay in descriptive sociology; for the suggestion that inquiries into the meaning of words merely throw light on words is false. Many important distinctions, which are not immediately obvious, between types of social situation or relationships may best be brought to light by an examination of the standard uses of the relevant expressions and of the way in which these depend on a social context, itself often left unstated. In this field of study it is particularly true that we may

2 Id., pp. 25-26.3 Id., p. 35.

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use, as Professor J. L. Austin said, ‘a sharpened awareness of words to sharpen our perception of the phenomena.”4

He aims to answer the question “What is law?,” noting that the question gives rise to a number of persistent perplexities.

“Few questions concerning human society have been asked with such persistence and answered by serious thinkers in so many diverse, strange, and even paradoxical ways as the question ‘What is law?’ Even if we confine our attention to the legal theory of the past 150 years and neglect classical and medieval speculation about the ‘nature’ of law, we s hall find a situation not paralleled in any other subject systematically studies as a separate academic discipline. No vast literature is dedicated to answering the questions ‘What is chemistry?” or “What is medicine?’, as it is to the question ‘What is law?’ A few lines on the opening page of an elementary textbook is all that the student of these sciences is asked to consider; and the answers he is given are of a very different kind from those tendered to the student of law. No one has thought it illuminating or important to insist that medicine is ‘what doctors do about illnesses’, or ‘a prediction of what doctors will do’, or to declare that what is ordinarily recognized as a characteristic, central part of chemistry at all. Yet, in the case of law, things which at first sight look as strange as these have often been said, and not only said but urged with eloquence and passion, as if they were revelations of truths about law, long obscured by gross misrepresentations of its essential nature.”5

These perplexities persist despite the fact that most people know what the law means and can identify a law very readily and unproblematically. It concerns a deeper, more disturbing unease and disconcert.

“When we reflect on the quite general ability of people to recognize and cite examples of laws and on how much is generally known about a standard case of a legal system, it might seem that we could easily put an end to this persistent question, ‘What is law?’, simply by issuing a series of reminders of what is already familiar. Why should we not just repeat the skeleton account of salient features of a municipal legal system which, perhaps optimistically, we put . . . into the mouth of an educated man? We can then simply say, ‘Such and such is the standard case of what is meant by “law” and “legal system”; remember that besides these standard cases you will also find arrangements in social life which, while sharing some of these salient features, also lack others of them. These are disputed cases where there can be no conclusive arguments for or against their classification.’

Such a way with the question would be agreeably short. But it would have nothing else to recommend it. For . . . it is clear that those who are most perplexed by the question ‘What is law?’ have not forgotten and need no reminder of the familiar facts which this skeleton answer offers them. The deep perplexity which has kept alive the question, is not ignorance or forgetfulness or inability to recognize the phenomena to which the word ‘law’ commonly refers.”6

There are recurrent themes regarding the question of the nature of law, and it is the resolution to these themes which provides the key to the answer to the question.

“For there are certain recurrent main themes which have formed a constant focus of argument and counter-argument about the nature of law, and provoked exaggerated and paradoxical assertions about law such as those we have already cited. Speculation about the nature of law

4 H.L.A. Hart, The Concept of Law, Oxford: Clarendon Press, 1961, “Preface,” p. v.5 Id., p. 1.6 Id., pp. 4-5.

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has a long and complicated history; yet in retrospect it is apparent that it has centered almost continuously upon a few principal issues. These were not gratuitously chosen or invented for the pleasure of academic discussion; they concern aspects of law which seem naturally, at all times, to give rise to misunderstanding, so that confusion and a consequent need of greater clarity about them may coexist even in the minds of thoughtful men with a firm mastery of a knowledge of law.”7

The first issue is connected with the concept of obligation.

“The most prominent general feature of law at all times and places is that its existence means that certain kinds of human conduct are no longer optional but in some sense obligatory. Yet this apparently simple characteristic of law is not in fact a simple one; for within the sphere of non-optional obligatory conduct we can distinguish different forms. The first, simplest sense in which conduct is no longer optional, is when one man is forced to do what another tells him, not because he is physically compelled in the sense that his body is pushed or pulled about, but because the other threatens him with unpleasant consequences if he refuses. The gunman orders his victim to hand over his purse and threatens to shoot if he refuses; if the victim complies we refer to the way in which he was forced to do so by saying that he was obliged to do so. To some it has seemed clear that in this situation where one person gives another an order backed by threats, and in this sense of ‘oblige’, obliges him to comply wit, we have the essence of law, or at least ‘the key to the science of jurisprudence’. This is the starting-point of Austin’s analysis by which so much English jurisprudence has been influenced.

There is of course no doubt that a legal system often presents this aspect among others. A penal statute declaring certain conduct to be an offence and specifying the punishment to which the offender is liable, may appear to be the gunman situation writ large; and the only difference to be the relatively minor one, that in the case of statutes, the orders are addressed generally to a group which customarily obeys such orders. But attractive as this reduction of the complex phenomena of law to this simple element may seem, it has been found, when examined closely, to be a distortion and a source of confusion even in the case of a penal statute where an analysis in these simple terms seems most plausible. How then do law and legal obligation differ from, and how they are related to, orders backed by threats? This at all times has been one cardinal issue latent in the question ‘What is law?’.”8

The next recurring issue is also connected with the issue of obligation.

“Moral rules impose obligations and withdraw certain areas of conduct from the free option of the individual to do as he likes. Just as a legal system obviously contains elements closely connected with the simple case of orders backed by threats, so equally obviously it contains elements closely connected with certain aspects of morality. In both cases alike there is a difficulty in identifying precisely the relationship and a temptation to see in the obviously close connection an identity. Not only do law and morals share a vocabulary so that there are both legal and moral obligations, duties, and rights; but all municipal legal systems reproduce the substance of certain fundamental moral requirements. Killing and the wanton use of violence are not only the most obvious examples of the coincidence between the prohibitions of law and morals. Further, there is one idea, that of justice which seems to unite both fields: it is both a virtue specially appropriate to law and the most legal of the virtues. We think and talk of ‘justice according to law’ and yet also of the justice and injustice of the laws.

7 Id., pp. 5-6.8 Id., pp. 6-7; italics Hart’s.

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These facts suggest the view that law is best understood as a ‘branch’ of morality or justice and that its congruence with the principles of morality or justice rather than its incorporation of orders and threats is of its ‘essence’. This is the doctrine characteristic not only of scholastic theories of natural law but of some contemporary legal theory which is critical of the legal ‘positivism’ inherited from Austin. Yet here again theories that make this close assimilation of law to morality seem, in the end, often to confuse one kind of obligatory conduct with one another, and to leave insufficient room for differences in kind between legal and moral rules and for divergences in their requirements. These are at least as important as the similarity and convergence which we may also find. So the assertion that ‘an unjust law is not a law’ has the same ring of exaggeration and paradox, if not falsity, as ‘statutes are not laws’ or ‘constitutional law is not law.’ It is characteristic of the oscillation between extremes, which make up the history of legal theory, that those who have seen in the close assimilation of law and morals nothing more than a mistaken inference from the fact that law and morals share a common vocabulary of rights and duties, should have protested against it in terms equally exaggerated and paradoxical. ‘The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.’”9

The third recurrent issue concerns the law’s connection with rules.

“The third main issue perennially prompting the question ‘What is law?’ is a more general one. At first sight it might seem that the statement that a legal system consists, in general at any rate, of rules could hardly be doubted or found difficult to understand. But those who have found the key to the understanding of law in the notion of orders backed by threats, and those who have found it in its relation to morality or justice, alike speak of law as containing, if not consisting largely of, rules. Yet dissatisfaction, confusion, and uncertainty concerning this seemingly unproblematic notion underlies much of the perplexity about the nature of law. What are rules? What does it mean to say that a rule exists? Do courts really apply rules or merely pretend to do so? Once the notion is queried, as it has been especially in the jurisprudence of this century, major divergencies in opinion appear.”10

There are then, to Hart, three recurrent issues of law.

“Here then are the three recurrent issues: How does law differ from and how is it related to orders backed by threats? How does legal obligation differ from, and how is it related to, moral obligation? What are rules and to what extent is law an affair of rules? To dispel doubt and perplexity on these three issues has been the chief aim of most speculation about the ‘nature’ of law. It is possible now to see why this speculation has usually been conceived as a search for the definition of law, and also why the familiar forms of definition have done so little to resolve the persistent difficulties and doubts. Definition, as the word suggests, is primarily a matter of drawing lines or distinguishing between one kind of thing and another, which language marks off by a separate word. The need for such a drawing of lines is often felt by those who are perfectly at home with the day-to-day use of the word in question, but cannot state or explain the distinctions which, they sense, divide one kind of thing from another. All of us are sometimes in this predicament: it is fundamentally that of the man who says, ‘I can recognize an elephant when I see one but I cannot define it.’ The same predicament was expressed by some famous words of St. Augustine about the notion of time. ‘What then is time? If no one asks me I know: if I wish to explain it to one that asks I know not.’ It is in this way that even skilled lawyers have felt that, though they know the law, there is much about law and its relation to other things they cannot explain and do not fully understand. Like a man who can get from one point to another in a familiar town but cannot explain or show others how to do it, those who press for a definition

9 Id., pp. 7-8; italics Hart’s.10 Id. p. 8; italics Hart’s.

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need a map exhibiting clearly the relationships dimly felt to exist between the law they know and other things.”11

But it is not a definition a legal theorist is looking for.

“There are of course many kinds of definition besides the very simple traditional form which we have discussed, but it seems clear, when we recall the character of the three main issues which we have identified as underlying the recurrent question ‘What is law?’, that nothing concise enough to be recognized as a definition could provide a satisfactory answer to it. The underlying issues are too different from each other and too fundamental to be capable of this sort of resolution. This the history of attempts to provide concise definitions has shown. Yet the instinct which has often brought these three questions together under a single question or request for definition has not been misguided; for, as we shall show in the course of this book, it is possible to isolate and characterize a central set of elements which form a common part of the answer to all three.”12

If not a definition, what then is the theorist after?

“For its purpose is not to provide a definition of law, in the sense of a rule by reference to which the correctness of the use of a word can be tested; it is to advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system and a better understanding of the resemblances and differences between law, coercion, and morality, as types of social phenomena.”13

Consequently, I now turn to the substantive aspects of Hart’s theory, wherein he attempts to answer the question ‘What is law?’ by means of resolving the three recurrent issues of law satisfactorily. To the substance of his work therefore, I now proceed.

II. SOCIAL RULES

Rules provide the focus of Hart’s theory. In explaining a social rule, he first distinguishes a rule from a habit. In other words, he is concerned to explain when a habit becomes a rule. For example, members of a particular community engage in the habit of shaking hands as a form of greeting. Nobody told them to do so. Perhaps one person did it to another and the practice caught on. At that point, the practice was only a habit, and not yet a rule. It becomes a rule when it has acquired a certain degree of importance that the members feel it to be an obligation to shake hands upon meeting and consider people rude who refuse to do it. Prior to that point, it was merely a practice or custom that most people complied with; in short, merely a habit. There was no feeling or sense of obligation that they had to shake hands upon meeting people.

From this insight, Hart distinguishes a habit from a rule in three important ways.

“First, for the group to have a habit it is enough that their behavior in fact converges. Deviation from the regular course need not be a matter for any form of criticism. But such general convergence or even identity of behaviour is not enough to constitute the existence of a rule requiring that behaviour: where there is such a rule deviations are generally regarded as lapses or faults open to criticism, and threatened deviations meet with the pressure for conformity, though the forms of criticism and pressure differ with different types of rule.

11 Id., pp. 13-14.12 Id., p. 16.13 Id., pp. 16-17.

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Secondly, where there are such rules, not only is such criticism in fact made but deviation from the standard is generally accepted as a good reason for making it. Criticism deviation is regarded as legitimate or justified in this sense, as are demands for compliance with the standard when a deviation is threatened. Moreover, except by a minority of hardened offenders, such criticism and demands are generally regarded as legitimate, or made with good reason, both by those who make them and those to whom they are made. How many of the group must in these various ways treat the regular mode of behavior as a standard of criticism, and how often and for how long they must do so to warrant the statement that the group has a rule, are not definite matters; they need not worry us more than the question as to the number of hairs a man may have and still be bald. We need only remember that the statement that a group has a certain rule is compatible with the existence of a minority who not only break the rule but refuse to look upon it as a standard either for themselves or others.

The third feature distinguishing social rules from habits is implicit in what has already been said, but it is one so important and so frequently disregarded or misrepresented in jurisprudence that we shall elaborate it here. It is a feature which throughout this book we shall call the internal aspect of rules. When a habit is general in a social group, this generality is merely a fact about the observable behaviour of most of the group. In order that there should be such a habit no members of the group need in any way think of the general behaviour, or even know that the behaviour in question is general; still less need they strive to teach or intend to maintain it. It is enough that each for his part behaves in the way that others also in fact do. By contrast, if a social rule is to exist some at least must look upon the behaviour in question as a general standard to be followed by the group as a whole. A social rule has an ‘internal’ aspect, in addition to the external aspect which it shares with a social habit and which consists in the regular uniform behaviour which an observer could record.”14

Therefore, there exist three characteristics in order for a social rule to exist. First, there must exist such a convergence of behavior so that deviations from the standard of behavior call not only for criticism among those who engage in the practice against those who do not behave in accordance with the way the majority behaves, but also calls for conformity against the deviators. Secondly, appeal to the standard is a good reason for behaving in accordance with the standard. Finally, there must exist what Hart calls the internal aspect.

Hart elaborates on this internal aspect. It is not simply a matter of feelings, of feeling bound, for example. Rather it is a critical reflective attitude:

“The internal aspect of rules is often misrepresented as a mere matter of ‘feelings’ in contrast to externally observable physical behaviour. No doubt, where rules are generally accepted by a social group and generally supported by social criticism and pressure for conformity, individuals may often have psychological experiences analogous to those of restriction or compulsion. When they say they ‘feel bound’ to behave in a certain ways they may indeed refer to these experiences. But such feelings are neither necessary nor sufficient for the existence of ‘binding’ rules. There is no contradiction in saying that people accept certain rules but experience no such feelings of compulsion. What is necessary is that there should be a critical reflective attitude to certain patterns of behaviour as a common standard and that this should display itself in criticism (including self-criticism), demands for conformity, and in acknowledgment that such criticism and demands are justified, all of which find their characteristic expression in the normative terminology of ‘ought’, ‘must’, and ‘should’, ‘right’ and ‘wrong’.”15

14 Id., pp. 54-55.15 Id., p. 56.

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By means of the internal aspect of rules, Hart introduces a method of scientific inquiry, now referred to as hermeneutic, which adopts an internal attitude towards the phenomenon or practice the scientist or theorist is investigating.

“This is the context for analysing Hart’s concept of the internal aspect of rules. The idea is that one cannot understand a social system unless one understands how the people who created the system or who participate in the system perceive it. This ‘hermeneutic’ approach—that is, giving priority to trying to understand how other people perceive their situation is always in tension with those who want social theory to be more scientific.

The ‘scientific’ approach in social theory would rely only on data that was ‘objective’, data on which different observers would always agree. The ‘scientific’ approach to legal theory might be exemplified in various theorists’ writings: for example, Christopher Columbus Langdell’s view of legal theory as the search for the system of basic principles within the law, and the American legal realists (to some extent reacting to Langdell’s views) emphasizing what judges ‘actually do’ as contrasted with what they are saying that they are doing. Hart also specifically mentioned the work of the Scandinavian Legal Realist Alf Ross, who (according to Hart) ‘claimed that the only method of representation of the law fit to figure in a modern rational science of law was one which shared the structure and logic of statements of empirical science.”

Hart’s argument is that whatever advantage a ‘scientific’ approach might have, it simply is not adequate for a full understanding of law. Law is a social institution to set up to achieve certain human purposes, and also to give guidance to citizens. One can only understand purposive behaviour and normative (rule-following) behaviour if one leaves one’s spectator’s perspective and tries to understand the perceptions of the participants in the system, that is, the perceptions of the people who are following the rules, and who perceive themselves as doing so. In Hart’s terms, to understand ‘any form of normative social structure’, ‘the methodology of the empirical sciences is useless; what is needed is a ‘hermeneutic’ method which involves portraying rule-governed behaviour as it appears to the participants.”16

III. THE KEY TO THE SCIENCE OF JURISPRUDENCE

Hart argued that without the idea of a rule, it was hopeless to elucidate even the most elementary forms of law. He then explained two kinds of rules:

“It is true that the idea of a rule is by no means a simple one: we have already seen . . . the need, if we are to do justice to the complexity of a legal system, to discriminate between two different though related types. Under rules of the one type, which may well be considered the basic or primary type, human beings are required to do or abstain from certain actions, whether they wish to or not. Rules of the other type are in a sense parasitic upon or secondary to the first; for they provide that human beings may by doing or saying certain things introduce new rules of the primary type, extinguish or modify old ones, or in various ways determine their incidence or control their operations. Rules of the first type impose duties; rules of the second type confer powers, public or private. Rules of the first type concern actions involving physical movements or changes; rules of the second type provide for operations which lead not merely to physical movement or change, but to the creation or variation of duties or obligations.”17

It is Hart’s contention that “in the combination of these two types of rule there lies what Austin wrongly claimed to have found in the notion of coercive orders, namely, ‘the key to the science of jurisprudence.’”18

16 Brian Bix, Jurisprudence: Theory and Context, London: Sweet and Maxwell, 2003, p. 40.17 Id., pp. 78-79.18 Id., p. 79.

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He then conducted a thought experiment in order to find out the key elements to law or a legal system. He imagined a society without a legislature, courts or officials of any kind. He referred to it as a social structure with only primary rules of obligation.

“If a society is to live by primary rules alone, there are certain conditions which, granted a few of the most obvious truisms about human nature and the world we live in, must clearly be satisfied. The first of these conditions is that the rules must contain some form of restrictions on the free use of violence, theft, and deception to which human beings are tempted but which they must, in general, repress, if they are to coexist in close proximity to each other. Such rules are in fact always found in primitive societies of which we have knowledge, together with a variety of others imposing on individuals various positive duties to perform services or make contributions to the common life. Secondly, though such a society may exhibit the tension, already described, beyond those who accept the rules and those who reject the rules except where fear of social pressure induces them to conform, it is plain that the latter cannot be more than a minority, if so loosely organized a society of persons, approximately equal in physical strength, is to endure: for otherwise those who reject the rules would too little social pressure to fear. This too is confirmed by what we know of primitive communities where, though there are dissidents and malefactors, the majority live by the rules seen from the internal point of view.”19

Such a simple society will suffer from certain defects and will require supplementation in various ways. The first of these defects is the lack of a rule of recognition.

“In the first place, the rules by which the group lives will not form a system, but will simply be a set of separate standards, without any identifying or common mark, except of course that they are the rules which a particular group of human beings accepts. They will in this respect resemble our own rules of etiquette. Hence if doubts arise as to what the rules are or as to the precise scope of some given rule, there will be no procedure for settling this doubt, either by reference to some authoritative text or to an official whose declarations on this point are authoritative. For, plainly, such a procedure and the acknowledgement of either authoritative text or persons involve the existence of rules of a type different from the rules of obligation or duty which ex hypothesi are all that the group has. This defect in the simple social structure of primary rules we may call its uncertainty.”20

There is a second defect, that of staticity.

“A second defect is the static character of the rules. The only mode of change in the rules known to such a society will be the slow process of growth, whereby courses of conduct once thought optional become first habitual or usual, and then obligatory, and the converse process of decay, where deviation once severely dealt with, are first tolerated and then pass unnoticed. There will be no means, in such a society, of deliberately adopting the rules to changing circumstances, either by eliminating old rules or introducing new ones: for, again the possibility of doing this presupposes the existence of rules of a different type from the primary rules of obligation by which alone society lives. In an extreme case the rules may static in a more drastic sense. This, though never perhaps fully realized in any actual community, is worth considering because the remedy for it is something very characteristic of law. Each individual would simply have fixed obligations or duties to do or abstain from doing certain things. It might indeed be very often the case that others would benefit from the performance of these obligations yet if there are only primary rules of obligation they would have no power to release those bound from performance or to transfer to others the benefits which would accrue from performance. For such operations

19 Id., p. 89.20 Id., p. 90; italics Hart’s.

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of release or transfer create changes in the initial positions of individuals under the primary rules of obligation, and for these operations to be possible there must rules of a sort different from the primary rules.”21

The third defect is that of inefficiency.

“The third defect of this simple form of social life is the inefficiency. Disputes as to whether an admitted rule has or has not been violated will always occur and will, in any but the smallest societies, continue interminably, if there is no agency specially empowered to ascertain finally, and authoritatively, the fact of violation. Lack of such final and authoritative determinations is to be distinguished from another weakness associated with it. This is the fact that punishments for violations of the rules, and other forms of social pressure involving physical effort or the use of force, are not administered by a special agency but are left to the individuals affected or to the group at large. It is obvious that the waste of time involved in the group’s unorganized efforts to catch and punish offenders, and the smoldering vendettas which may result from self help in the absence of an official monopoly of ‘sanctions’, may be serious. The history of law does, however, strongly suggest that the lack of official agencies to determine authoritatively the fact of violation of the rules is a much more serious defect; for many societies have remedies for this defect long before the other.”22

The remedy to these defects lies in supplementing the primary rules of obligation with secondary rules.

“(Secondary) rules have important features in common and are connected in various ways. Thus they may all be said to be on a different level from the primary rules, for they are all about such rules; in the sense that while primary rules are concerned with the actions that individuals must or must not do, these secondary rules are all concerned with the primary rules themselves. They specify the ways in which the primary rules may be conclusively ascertained, introduced, eliminated, varied, nd the fact of their violation conclusively determined.”23

It constitutes a step from the pre-legal into the legal world. “The introduction of the remedy for each defect might, in itself, be considered a step from the pre-legal into the legal world; since each remedy brings with it many elements that permeate law: certainly all three remedies together are enough to convert the regime of primary rules into what is indisputably a legal system.”24

To the defect of uncertainty, Hart supplements the simple social structure of primary rules with the rule of recognition.

“The simplest form of remedy for the uncertainty of the regime of primary rules is the introduction of what we shall call a ‘rule of recognition’. This will specify some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule of the group to be supported by the social pressure it exerts. The existence of such a rule may take any of a huge variety of forms, simple or complex. It may, as in the early law of many societies, by no more than an authoritative list or text of the rules is to be found in a written document or carved on some public monument. No doubt as a matter of history this step from the pre-legal to the legal may be accomplished in distinguishable stages, of which the first is the mere reduction to writing of hitherto unwritten rules. This is not itself the crucial step, though it is a very important one: what is crucial is the acknowledgement of reference to the writing or inscription as authoritative, i.e., as the proper way of disposing of doubts as to the

21 Id., pp. 90-91; italic’s Hart’s.22 Id., p. 91, italics Hart’s.23 Id., p. 92, italics Hart’s.24 Id., p. 91, italics Hart’s.

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existence of the rule. Where there is such an acknowledgement there is a very simple form of a secondary rule: a rule for conclusive identification of the primary rules of obligation.

In a developed legal system the rules of recognition are of course more complex; instead of identifying rules exclusively by reference to a text or list they do so by reference to some general characteristic possessed by the primary rules. This may be the fact of their having been enacted by a specific body, or their long customary practice, or their relation to judicial decisions. Moreover, where more than one of such general characteristics are treated as identifying criteria, provision may be made for their possible conflict by their arrangement in an order of superiority, as by the common subordination of custom or precedent to statute, the latter being a ‘superior source’ of law. Such complexity may make the rules of recognition in a modern legal system seem very different from the simple acceptance of an authoritative text: yet even in this simplest form, such a rule brings with it many elements distinctive of law. By providing an authoritative mark it introduces, although in embryonic form, the idea of a legal system: for the rules are now not just a discrete unconnected set but are, in a simple way, unified. Further, in the simple operation of identifying a given rule as possessing the required feature of being an item on an authoritative list of rules we have the germ of the idea of legal validity.”25

The second remedy is that of rules of change.

The remedy for the static quality of the regime of primary rules consists in the introduction of what we shall call ‘rules of change’. The simplest form of such a rule is that which empowers an individual or body of persons to introduce new primary rules for the conduct of the life of the group, or of some class within it, and to eliminate old rules. As we have already argued . . . it is in terms of such a rule, and not in terms of orders backed by threats, that the ideas of legislative enactment and repeal are to be understood. Such rules of change may be very simple or very complex: the powers conferred may be unrestricted or limited in various ways: and the rules may, besides specifying the persons who are to legislate, define in more or less rigid terms the procedure to be followed in legislation. Plainly, there will be a very close connexion between the rules of change and rules of recognition: for where the former exists the latter will necessarily incorporate a reference to legislation as an identifying feature of the rules, though it need not refer to all the details of procedure involved in legislation. Usually some official certificate or official copy will, under the rules of recognition, be taken as a sufficient proof of due enactment. Of course if there is a social structure so simple that the only ‘source of law’ is legislation, the rule of recognition will simply specify enactment as the unique identifying mark or criterion of validity of the rules. This will be the case for example in the imaginary kingdom of Rex I depicted in Chapter IV: there the rule of recognition would simply be that whatever Rex I enacts is law.”26

To the third defect of inefficiency, there correspond the rules of adjudication as a remedy.

“The third supplement to the simple regime of primary rules, intended to remedy the inefficiency of the social pressure, consists of secondary rules empowering individuals to make authoritative determinations of the question whether on a particular occasion, a primary rule has been broken. The minimal form of adjudication consists in such determinations, and we shall call the secondary rules which confer the power to make them ‘rules of adjudication’. Besides identifying the individuals who are to adjudicate, such rules will also define the procedure to be followed. Like the other secondary rules these are on a different level from the primary rules: though they may be reinforced by further rules imposing duties on judges to adjudicate, they do not impose duties but confer judicial powers and a special status on judicial declarations about the breach of obligations. Besides these resemblances to the other secondary rules, rules of adjudication have

25 Id., pp. 92-93; italics Hart’s.26 Id., p. 93; italics Hart’s.

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intimate connexion with them. Indeed, a system which has rules of adjudication is necessarily also committee to a rule of recognition of an elementary and imperfect sort. This is so because, if courts are empowered to make authoritative determinations of the fact that a rule has been broken, these cannot avoid being taken as authoritative determinations of what the rules are. So the rule which confers jurisdiction will also be a rule of recognition, identifying the primary rules through the judgments of the courts and these judgments will become a ‘source’ of law. It is true that this form of rule of recognition, inseparable from the minimum form of jurisdiction, will be very imperfect. Unlike an authoritative text or a statute book, judgments may not be couched in general terms and their use as authoritative guides to the rules depends on a somewhat shaky inference from particular decisions, and the reliability of this must fluctuate both with the skill of the interpreter and the consistency of the judges.”27

This union of primary and secondary rules comprises both the heart of a legal system such that Hart called it the “key to the science of jurisprudence,” but also a powerful conceptual tool by which Hart will proceed to analyze the concepts of law and of legal systems.

“If we stand back and consider the structure which has resulted from the combination of primary rules of obligation with the secondary rules of recognition, change, and adjudication, it is plain that we have here not only the heart of a legal system, but a most powerful tool for the analysis of much that has puzzled both the jurist and the political theorist.

Not only are the specifically legal concepts with which the lawyer is professionally concerned, such as those of obligation and rights, validity and source of law, legislation and jurisdiction, and sanction, best elucidated in terms of this combination of elements. The concepts (which bestride both law and political theory) of the state, of authority, and of an official require a similar analysis if the obscurity which still lingers about them to be dissipated. The reason why an analysis in these terms of primary and secondary rules has this explanatory power is not far to seek. Most of the obscurities and distortions surrounding legal and political concepts arise from the fact that these essentially involve reference to what we have called the internal point of view: the view of those who do not merely record and predict behaviour conforming to rules, but use the rules as standards for the appraisal of their own and others’ behaviour. This requires more detailed attention in the analysis of legal and political concepts than it has usually received. Under the simple regime of primary rules the internal point of view is manifested in its simplest form, in the use of those rules as the basis of criticism, and as the justification of demands for conformity, social pressure, and punishment. Reference to this most elementary manifestation of the internal point of view is required for the analysis of the basic concepts of obligation and duty. With the addition to the system of secondary rules, the range of what is said and done from the external point of view is much extended and diversified. With this extension comes a whole set of new concepts and they demand a reference to the internal point of view for their analysis. These include the notions of legislation, jurisdiction, validity and, generally, of legal powers, private and public. There is a constant pull towards an analysis of these in the terms of ordinary or ‘scientific’, fact-stating or predictive discourse. But this can only reproduce their external aspect: to do justice to their distinctive, internal aspect we need to see the different ways in which the law-making operations of the legislator, the adjudication of a court, the exercise of private or official powers, and other ‘acts-in-the-law’ are related to secondary rules.”28

IV. THE RULE OF RECOGNITION

Hart’s rule of recognition plays the same role as the basic norm in Kelsen’s coercive order does. It provides the criteria by which the validity of other rules of the system is assessed. At this stage, the distinction between the

27 Id., pp. 94-95, italics Hart’s.28 Id., pp. 95-96; italics Hart’s.

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ultimacy of the rule of recognition and the supremacy of one of its criteria deserves attention. Hart has this to say about the latter: “We may say that a criterion of legal validity or source of law is supreme if rules identified by reference to it are still recognized as rules of the system, even if they conflict with rules identified by reference to the other criteria, whereas rules identified by reference to the latter are not so recognized if they conflict with the rules identified by reference to the same criterion.”29

This is how Hart defines the ultimacy of a rule of recognition.

“The sense in which the rule of recognition is the ultimate rule of a system is best understood if we pursue a very familiar chain of legal reasoning. If the question is raised whether some suggested rule is legally valid, we must, in order to answer the question, use a criterion of validity provided by some other rule. Is this purported by-law of the Oxfordshire County Council valid? Yes: because it was made in the exercise of the powers conferred, and in accordance with the procedure specified, by a statutory order made by the Minister of Health. At this first stage the statutory order provides the criteria in terms of which the validity of the by-law is assessed. There may be no practical need to go farther; but there is a standing possibility of doing so. We may query the validity of the statutory order and assess its validity in terms of the statute empowering the minister to make such orders. Finally when the validity of the statute has been queried and assessed by reference to the rule that what the Queen in Parliament enacts is law, we are brought to a stop in inquiries concerning validity: for we have reached a rule which, like the intermediate statutory order and statute, provides criteria for the assessment of the validity of other rules; but it is also unlike them in that there is no rule providing criteria for the assessment of its own legal validity.”30

Moreover, the rule of recognition is not merely presupposed, as Kelsen’s basic norm is, but its validity is assumed because its existence can be shown as a matter of fact. This was explained in the previous chapter. In such a manner is its validity and existence distinguished from the other rules or laws in the legal system. “In this respect, however, as in others a rule of recognition is unlike other rules of the system. The assertion that it exists can only be an external statement of fact. For whereas a subordinate rule of a system may be valid and in that sense ‘exist’ even if it is generally disregarded, the rule of recognition exists only as a complex, but normally concordant, practice of the courts, officials, and private persons in identifying the law by referenced to certain criteria. Its existence is a matter of fact.”31

Hart also distinguishes efficacy from validity in a manner bearing a great similarity with that of Kelsen.

“Some of the puzzles connected with the idea of legal validity are said to concern the relation between the validity and the ‘efficacy’ of law. If by ‘efficacy’ is meant that the fact that a rule of law which requires certain behaviour is obeyed more often than not, it is plain that there is no necessary connexion between the validity of any particular rule and its efficacy, unless the rule of recognition of the system includes among its criteria, as some do, the provision (sometimes referred to as a rule of obsolescence) that no rule is to count as a rule of the system if it has long ceased to be efficacious.

From the inefficacy of a given rule, which may or may not count against its validity, we must distinguish a general disregard of the rules of the system. This may be so complete in character and so protracted that we should say, in the case of a new system, that it had never established itself as the legal system of a given group, or, in the case of a once-established system, that it had ceased to be the legal system of the group. In either case, the normal context or background for making any internal statement in terms of the rules of the system is absent. In such cases it

29 Id., p. 103.30 Id., pp. 103-104, italics Hart’s.31 Id., pp. 107.

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would be generally pointless either to assess the rights and duties of particular persons by reference to the primary rules of a system or to assess the validity of any of its rules by reference to its rules of recognition. To insist on applying a system of rules which had either never actually been effective or had been discarded would, except in special circumstances mentioned below, be as futile as to assess the progress of a game by reference to a scoring rule which had never been accepted or had been discarded.

One who makes an internal statement concerning the validity of a particular rule of the system may be said to presuppose the truth of the external statement of fact that the system is generally efficacious. For the normal use of internal statements is in such a context of general efficacy. It would however be wrong to say that statements of validity ‘mean’ that the system is generally efficacious. For though it is normally pointless or idle to talk of the validity of a rule of a system which has never established itself or has been discarded, none the less it is not meaningless nor is it always pointless. One vivid way of teaching Roman Law is to speak as if the system were efficacious still and to discuss the validity of particular rules and solve problems in their terms; and one way of nursing hopes for the restoration of an old social order destroyed by revolution, and rejecting the new, is to cling to the criteria of the old regime. This is implicitly done by the White Russian who still claims property under some rule of descent which was a valid rule of Tsarist Russia.”32

Moreover, given the centrality and importance of the rule of recognition, the officials of the legal system must exhibit the appropriate attitude towards it.

“(The rule of recognition), if it is to exist at all, must be regarded from the internal point of view as a public, common standard of correct judicial decision, and not as something which each judge merely obeys for his part only. Individual courts of the system though they may, on occasion, deviate from these rules must, in general, be critically concerned with such deviations as lapses from standards, which are essentially common or public. This is not merely a matter of the efficiency or health of the legal system, but is logically a necessary condition of our ability to speak of the existence of a single legal system. If only some judges acted ‘for their part only’ on the footing that what the Queen in Parliament enacts is law, and made no criticism of those who did not respect this rule of recognition, the characteristic unity and continuity of a legal system would have disappeared. For this depends on the acceptance, at this crucial point, of common standards of legal validity. In the interval between these vagaries of judicial behaviour and the chaos which would ultimately ensue when the ordinary man was faced with contrary judicial orders, we would be at a lost to describe the situation. We would be in the presence of a lusus naturae worth thinking about only because our awareness of what is often too obvious to be noticed.”33

On the other hand, the citizens need not exhibit such an attitude. Most of them must merely display what Austin called a ‘habit of obedience’ towards the laws of the legal system.

“Here (in a complex modern state) surely the reality of the situation is that a great proportion of the ordinary citizens—perhaps a majority—have no general conception of the legal structure of its criteria of validity. The law which he obeys is something which he knows of only as ‘the law’. He may obey it for a variety of different reasons and among them may often, though not always, be the knowledge that it will be best for him to do so. He will be aware of the general likely consequences of disobedience: that there are officials who may arrest him and others who will try him and send him to prison for breaking the law. So long as the laws which are valid by the

32 Id., pp. 100-101; italics Hart’s.33 Id., pp. 112-113.

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system’s tests of validity are obeyed by the bulk of the population this surely is all the evidence we need in order to establish that a given legal system exists.”34

This brings me to discuss the two necessary and sufficient conditions for the existence of a legal system.

“There are therefore two minimum conditions necessary and sufficient for the existence of a legal system. On the one hand those rules of behaviour which are valid according to the system’s criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials. The first condition is the only one which private citizens need satisfy: they may obey each ‘for his part only’ and from any motive whatsoever; though in a healthy society they will in fact often accept these rules as common standards of behaviour and acknowledge an obligation to obey them, or even trace this obligation to a more general obligation to respect the constitution. The second condition must also be satisfied by the officials of the system. They must regard these as common standards of official behaviour and appraise critically their own and each other’s deviations as lapses. Of course it is also true that besides these there will be many primary rules which apply to officials in their merely personal capacity which they need only to obey.

The assertion that a legal system exists is therefore a Janus-faced statement looking both towards obedience by ordinary citizens and to the acceptance by the officials of the secondary rules as critical common standards of official behaviour. We need not be surprised at this duality. It is merely the reflection of the composite character of a legal system as compared with a simpler decentralized pre-legal form of social structure which consist only of primary rules. In the simpler structure, since there are no officials, the rules must be widely accepted as setting critical standards for the behaviour of the group. If, here, the internap point of view is not widely disseminated there could not logically be any rules. But where there is a union of primary and secondary rules, which is, as we have argued, the most fruitful way of regarding a legal system, the acceptance of the rules as commons standards for the group may be split off from the relatively passive matter of the ordinary individual acquiescing in the rules by obeying them for his part alone. In an extreme case the internal point of view with its characteristic normative use of legal language (‘This is a valid rule’) might be confused to the official world. In this more complex system, only officials might accept and use the system’s criteria of legal validity. The society in which this was so might be deplorably sheeplike; the sheep might end in the slaughter-house. But there is little reason for thinking that it could not exist or for denying it the title of the legal system.”35

V. COMMENTS AND CRITICISM Hart’s theory of law can be criticized on four points. The first concerns his distinction between primary and secondary rules. The next two are external criticisms due to Dworkin, who challenged Hart’s claim regarding the existence of a rule of recognition and maintained that his theory was beset by what he called the semantic sting. Finally, Raz’ internal criticism faulted his theory for lacking sufficient purity in positivist values by advocating what was later called an ‘inclusive’ version of positivism, or soft positivism, in contrast to his ‘exclusive’ positivism or hard positivism.

A. The Conflation of the Distinction between Primary and Secondary Rules

Hart’s distinction between primary and secondary rules can be made more precise as he appears to conflate three different distinctions.

34 Id., pp. 111.35 Id., pp. 113-114; italics Hart’s.

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“Hart lays great emphasis on another distinction among rules. In Chapter V he distinguished primary from secondary rules, and believes that this distinction furnishes him with ‘the key to the science of jurisprudence’. But the distinction is uncharacteristically unclear. It seems to be a conflation of at least three different distinctions. There is a distinction between rules imposing duties and rules conferring powers; there is a distinction between simple legal rules and somewhat more sophisticated meta-rules; and there is the ghost of a positivist distinction between rules concerning actions involving physical movements or changes, and those which lead to the creation of duties or obligations.”36

1. The distinction between rules concerning actions involving physical movements and those which create duties

It is the social aspect of the rule rather than its physical component which render rules relevant and significant to law and legal theory.

Laws seldom characterize actions by reference to mere physical movement, but construe them in a social context and often with reference to the agent’s intention. Stumbling into you differs from banging into you only in that I didn’t mean to: if I swat a horse-fly that is about to feast on your sunbathing thigh, I have not assaulted you, although I may have hurt you as much as if I had been administering corporal punishment: and physical actions which would be quite illegal if performed by me on you, would be entirely lawful if done by a policeman on a suspected criminal resisting arrest. Or, to take a very different case, my obligation to pay taxes derives from a rule Hart would reckon as primary, since it requires men to do certain actions whether they wish to or not, and yet is characteristically discharged by my signing a cheque, which varies the duties and obligations of a banker. It is a mistake to try to peel off the social or legal characterization of actions from a basic description in behaviouristic terms. Most of our actions are social actions, undertaken for social reasons in a social context, with social consequences and often endued with a social significance.”37

2. The distinction between rules which impose duties and rules which confer powers

Rules which impose duties and rules which confer powers are not so much distinct as correlative. Hart also mistakenly implies that one is more fundamental than another, which is not necessarily the case.

“The distinction between rules which impose duties and rules which confer powers likewise softens under scrutiny. Not that it is a useless distinction—it remains a valuable tool for analytic jurisprudence—but it is neither as fundamental nor as directed as Hart supposes. In spite of the inadequacies he perceives in Austin’s analysis, and the ways in which having a legal obligation cannot be reduced to being obliged by the threat of sanctions to act in a particular fashion. Hart tends to assume that having an obligation is more fundamental than having a power, so that rules imposing the former are primary, and those imposing the latter are only the secondary. But really the rules are correlative. The rules proscribing my driving a self-propelled vehicle on the public highway, unless I and it are licensed, and the rules prescribing the procedure for obtaining a driving and a vehicle license interlock. I cannot explain the one except with reference to the other. So, too, although less obviously, with Hart’s favourite examples of solemnizing a marriage or making a will. The laws prohibiting rape, adultery, seduction, and fornication, are clearly primary rules in Hart’s view, but equally clearly presuppose an already intelligible concept of marriage—no man, however attractive, can ever hope to seduce his own wife. Equally, the laws against theft presuppose laws of property, including therefore laws defining the conditions under

36 J.R. Lucas, “The Phenomenon of Law,” Law, Morality, and Society, ed. by P.M.S. Hacker and Joseph Raz, Oxford, Clarendon Press: 1997, pp. 85-98.37 Id., p. 87.

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which property may be disposed of. If after Aunt Agatha’s funeral I walk out of her house with a Sevre dinner service, I am stealing it unless she left it me; and whether I had stolen it or not might turn on whether her will leaving it me was valid or not—on whether she had signed it at the top, instead of the bottom (cf. The Concept of Law, p. 12) or whether the witnesses have seen her sign it only in a mirror, not being visibly present to her (as in Dorothy Sayer’s Unnatural Death). These examples are, I shall argue, typical. Every primary rule is correlative with some secondary rules, and vice versa. For rules imposing duties apply only in certain circumstances and subject to some exceptions, and since I have control of circumstances, I can take steps to put myself beyond the scope of the rule or within the ambit of some exception, and thus possess the power of making it lawful for me to do what I want to do. To take the most favourable case to Hart’s thesis, even the rule prohibiting homicide does not apply to soldiers in time of war, persons defending themselves against violent attack, or executioners carrying out judicial sentence of death. Jesebel was able to compass Naboth’s death under due form of law. Laws can be manipulated. Even straightforward prohibitions can be read as giving guide-lines on how the desired action may be performed without breaking the law, and thus as conferring powers to restyle the legal position so as to accomplish one’s purposes. Of course, in some cases such purposes can be achieved only by devious or dishonest manoeuvres, and the rule is correctly seen as imposing a duty rather than conferring a power, but in other cases the emphasis is reversed. So the distinction is valuable. But just as rules conferring powers would have no point unless somewhere down the line a person could by their aid bring about some alteration on the bearing on someone of some rule imposing a duty, so rules imposing duties create also a web of interlinked rights and powers, which they implicitly confer on various people. Any system, whether of law or of morality or of social custom, which imposes duties will also confer rights and powers, and he cannot reasonably regard the rules imposing the former as more primary than those conferring the latter.”38

3. The distinction between rules and meta-rules

The criticism of the distinction between rules and meta-rules focus on the rule of recognition. It is indeed a meta-rule; however, it need not have been formulated as explicitly and clearly as Hart did. Social circumstances provide the background in which the rule of recognition, which need not be formulated with perfect explicitness and clarity, can be specified and identified.

“Hart is at his unhappiest in his controversy with Professor Fuller over the legal status of wicked edicts enacted by an iniquitous regime. If the defining property of a law is that it should satisfy the rule of recognition of a regime whose laws are generally enforced, then the decrees of the Nazis were valid law, and the only question left is whether it should none the less be disobeyed. But this is to abstract too much and put on the rule of recognition more weight than it can properly bear. It is, after all, only a meta-rule, and, as Hart himself points out, not always fully formulated, and sometimes itself an object of controversy. The rule of recognition need be neither explicit nor clear. It was only very gradually that it changed in England, and shifted sovereignty from the monarch to parliament. It was not clear for centuries what the fundamental law of the land was, but laws were made, applied, and enforced none the less, because for the most part king and parliament were working together rather than in opposition. Legal disputes were much more about the scope or application of laws rather than their validity. The rule of recognition is implicit, rather than explicit, and rests upon a number of tacit understandings about the way in which various functionaries will cooperate and will be guided by public interests rather than private purposes. It may be a matter of considerable difficulty to say exactly what the rule of recognition is. It therefore may not be a very usable criterion of validity. Moreover, meta-rules, however useful they may be in remedying the inadequacies of a pre-legal regime, are ‘in some sense parasitic upon’ primary rules and cannot stand on their own. Hart

38 Id., pp. 88-89; italics Lucas’.

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makes the point very clear by his analogy with a scorer in a game. We may, for good reasons, have a scorer and may have the meta-rule that his decision is final, but this meta-rule operates, and can operate, only against the background that scoring is something which players by and large do themselves, and that the scorer is trying to do the same thing as the players are, and on the whole succeeding. Else the game is different, and becomes what Hart illuminatingly describes as the game of ‘scorer’s discretion’. Exactly similar arguments apply to the rule of recognition. It makes sense only as a development of a pre-legal regime in which most people know most of the time what their legal rights and duties are, and look to the civil authorities only to enforce them if need be and to adjudicate the relatively rare cases of dispute. Provided, but only provided, that the developed legal system satisfies their requirements, its various meta-rules will serve a social function and be generally accepted. But if we divorce the meta-rules from the substantive rules of social intercourse, they no longer fulfil their role and so cease being the rules they were. So long as rulers are trying to do the same thing, in regulating social behaviour, as the ordinary members of society are, and see a developed legal system as an improved version of a pre-legal regime. But once the tacit understandings which direct the rulers’ activities on lines congruous to the aims of ordinary citizens are dissolved, and the sole requirement for legal validity is that it should conform to the rule of recognition, the game has been changed, and we are no longer faced with a legal system, but a potentially disastrous analogue of scorer’s discretion.”39

Hence, due to the social background renders, there is no compelling necessity that a rule of recognition be formally and explicitly laid out in as precise and sophisticated a manner which Hart expects.

“The distinction between rules and meta-rules is a distinction between what is primary and what is secondary. It serves to characterize what Hart counts as a legal, in contrast to a pre-legal, system, but implies that the center of gravity of a legal system is not in its meta-rules, but in the primary rules of the pre-legal system and the social mores it embodies. If we concentrate too much on formal meta-rules, we shall abstract too much. If we concern ourselves only with formal criteria of legal validity, as we shall fail to see that these arise out of the law’s fulfilling a social function, and presuppose that the substantive law is in line with social customs and moral principles. Moreover, even if we wanted to, we would not give an entirely formal definition of law, for whereas rules imposing duties and rules conferring powers may be explicitly formulated in words, and usually become more fully formulated with the passage of time and the growing sophistication of a legal system, meta-rules, and especially the rule of recognition, are not, and cannot be, fully formulated, but must always be at least in part, implicit in a diffused recognition of what is rationally acceptable. They thus cannot provide completely adequate criteria of legal validity, since the crucial question—whether the meta-rules are operated in such a way as to produce the results that are by and large rationally acceptable—is one that no formal decision-procedure can always settle. The concepts of law, therefore, cannot be given too tidy a definition. It can be elucidated, but only as a social phenomenon that arises when men, who are rational but not very rational, and moral but not very moral, live their lives together.”40

B. The Rule of Recognition

Dworkin, in “The Model of Rules I,”41 characterized Hart’s positivism in terms of three tenets, only the first of which is to be examined. The first tenet states:

39 Id., pp. 92-93.40 Id., pp. 97-98, italics Lucas’.41 Ronald Dworkin, “The Model of Rules I,” Taking Rights Seriously, Cambridge: Harvard University Press, 1978, pp. 14-45.

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“The law of a community is a set of special rules used by the community directly or indirectly for the purpose of determining which behavior will be punished or coerced by public power. These special rules can be identified and distinguished by specific criteria, by tests having to do not with their content but with their pedigree or the manner in which they were adopted or developed. These tests of pedigree can be used to distinguish valid legal rules from spurious legal rules (rules which lawyers and litigants wrongly argue are rules of law) and also from other sorts of social rules (generally lumped together as ‘moral rules’) that the community follows but does not enforce through public power.”42

Dworkin engaged in a long argument in an attempt to disprove this tenet. He provided examples of judicial opinions, Riggs v. Palmer43 and Henningsen v. Bloomfield Motors, Inc.,44 wherein appeal to moral principles was used in a material way to justify the decision in the case. He then argued that this was not uncommon to judicial decision-making. These moral principles cannot be identified by means of tests of pedigree; as such, they defy the rules of recognition. In other words, some legal standards are part of law because of the role they play in judicial decision-making in a manner in which they are capture-free by the rule of recognition.

“Most rules of law, according to Hart, are valid because some competent institution enacted them. Some were created by a legislature, in the form of statutory enactments. Others were created by judges who formulated them to decide particular cases, and thus established them as precedents for the future. But this test of pedigree will not work for the Riggs and Henningsen principles. The origin of these as legal principles lies not in a particular decision of some legislature or court, but in a sense of appropriateness developed in the profession and the public over time. Their continued power depends upon this sense of appropriateness being sustained. If it no longer seemed unfair to allow people to profit from their wrongs, or fair to place special burdens upon oligopolies that manufacture potentially dangerous machines, these principles would no longer play much of a role in new cases, even if they had never been overruled or repealed. (Indeed, it hardly makes sense to speak of principles like these as being ‘overruled’ or ‘repealed’. When they decline, they are eroded, not torpedoed.)

True, if we were challenged to back up our claim that some principle is a principle of law, we would mention any prior case in which the principle was cited, or figured in the argument. We would also mention any statute that seemed to exemplify that principle (even better if the principle was cited in the preamble of the statute, or in the committee reports or other legislative documents that accompanied it). Unless we could find some institutional support, we would probably fail to make out our case, and the more support we found, the more weight we could claim for the principle.

Yet we could not devise any formula for testing how much and what kind of institutional support is necessary to make a principle a legal principle, still less to fix its weight at a particular order of magnitude. We argue for a particular principle by grappling with what a whole of shifting, developing, and interacting standards (themselves principles rather than rules) about institutional responsibility, statutory interpretation, the persuasive force of various sorts of precedent, the relation of all these to contemporary moral practices, and hosts of other such standards. We could not bolt all of these together into a single ‘rule’, even a complex one, and if we could the result would bear little relation to Hart’s picture of a rule of recognition, which is the picture of a fairly stable master rule specifying ‘some feature or features possession of which by a suggested rule is taken as a conclusive affirmative indication that it is a rule. . .’

42 Id., p. 17.43 115 N.Y. 506, 22 N.E. 188 (1889).44 32 N.J. 358, 161 A. 2d 69 (1960).

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Moreover, the techniques we apply in arguing for another principle do not stand (as Hart’s rule of recognition is designed to) on an entirely different level from the principles they support. Hart’s sharp distinction between acceptance and validity does not hold. If we are arguing for the principle that a man should not profit from his own wrong, we could cite the acts of courts and legislatures that exemplify it, but this speaks as much to the principle’s acceptance as its validity. (It seems odd to speak of a principle as being valid at all, perhaps because validity is an all-or-nothing concept, appropriate for rules, but inconsistent with a principle’s dimension of weight.) If we are asked (as we might well be) to defend the particular doctrine of precedent, or the particular technique of statutory interpretation, that we used in this argument, we should certainly cite the other general principles that we believe support that practice, and this introduces a note of validity into the chord of acceptance. We might argue, for example, that the use we make of earlier cases and statutes is supported by a particular analysis of the principles of democratic theory, or by a particular position on the proper division of authority between national and local institutions, or something else of that sort. Nor is this path of support a one-way street leading to some ultimate principle resting on acceptance alone. Our principles of legislation, precedent, democracy, or federation might be challenged too; and if they were we should argue for them, not only in terms of practice, but in terms of each other and in terms of the implications of trends of judicial and legislative decisions, even though this last would involve appealing to those same doctrines of interpretation we justified through the principles we are now trying to support. At this level of abstraction, in other words, principles rather hang together than link together.

So even though principles draw support from the official acts of legal institutions, they do not have a simple or direct enough connection with these acts to frame the connection in terms of criteria specified by some ultimate master rule of recognition.”45

Dworkin concluded:

“So we cannot adapt Hart’s version of positivism by modifying his rule of recognition to embrace principles. No tests of pedigree, relating principles to acts of legislation, can be formulated, nor can his concept of customary law, itself an exception to the first tenet of positivism, be made to serve without abandoning the tenet altogether. One more possibility must be considered, however. If no rule of recognition can provide a test for identifying principles, why not say that principles are ultimate, and form the rule of recognition of our law? The answer to the general question ‘What is the valid law in an American jurisdiction?’ would then require us to state all the principles (as well as ultimate constitutional rules) in force in that jurisdiction at the time, together with appropriate assignments of weight. A positivist might then regard the complete set of these standards as the rule of recognition of the jurisdiction. This solution has the attraction of paradox, but of course it is an unconditional surrender. If we simply designate our rule of recognition by the phrase ‘the complete set of principles in force’, we achieve only the tautology that law is law. If, instead, we tried actually to list all the principles in force we would fail. They are controversial, their weight is all important, they are numberless, and they shift and change so fast that the start of our list would be obsolete before we reached the middle. Even if we succeeded, we would not have a key for law because there would be nothing left for our key to unlock.

I conclude that if we treat principles as law we must reject the positivists’ first tenet, that the law of a community is distinguished from other social standards by some test in the form of a master rule.”46

45 Dworkin, supra., n. 35, pp. 40-41.46 Id., pp. 43-44.

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Prof. Dworkin summarizes his argument against the existence of a rule of recognition in another article:

“I might summarize the argument I made in this way. I said that the thesis that there exists some commonly recognized test for law is plausible if we look only at simple legal rules of the sort that appear in statutes or are set out in bold type in textbooks. But lawyers and judges, in arguing and deciding lawsuits, appeals not only to such black-letter rules, but also to other sorts of standards that I called legal principles, like, for example, the principle that no man may profit from his own wrong. This fact faces the positivist with the following difficult choice. He might try to show that judges, when they appeal to principles of this sort, are not appealing to legal standards, but only exercising their discretion. Or he might try to show that, contrary to my doubts, some commonly-recognized test always does identify the principles judges count as law, and distinguishes them from the principles they do not. I argued that neither strategy could succeed.”47

Prof. Joseph Raz took up the cudgels for the positivists in defending Hart against Dworkin’s attack. He replied that principles become part of the law in roughly the same way that rules do. Thus, if rules can be captured by some sort of master test, so can principles.

“Legal principles, like other laws, can be enacted or repealed by legislatures and administrative authorities. They can also become legally binding through establishment by the courts. Many legal systems recognize that both rules and principles can be made into law or lose their status through precedent. Rules and principles differ in this respect. A court can establish a new rule in a single judgment which becomes a precedent. Principles are not made into law by a single judgment; they evolve rather like a custom and are binding only if they have considerable authoritative support in a line of judgments. Like customary law, judicially adopted principles need not be formulated very precisely in the judgments which count as authority for their existence. All that has to be shown is that they underlie a series of courts’ decisions, that they were in fact a reason operating in a series of cases.”48

Dworkin formulates two arguments against the existence of a rule or recognition or a master test in law. This is how Raz describes and responds to the first argument.

“‘Hart’s sharp distinction between acceptance and validity,’ the first argument runs, ‘does not hold. If we are arguing for the principle that a man should not profit from his own wrong, we could cite the acts of courts and legislatures that exemplify it, but this speaks as much to the principle’s acceptance as its validity. (It seems odd to speak of a principle as being valid at all, perhaps because validity is an all-or-nothing concept, appropriate for rules, but inconsistent with a principle’s dimension of weight.’ The concept of validity is said to be inconsistent with a principle’s dimension of weight on the ground that one establishes a principle’s validity by showing that it has ‘institutional support’ but the amount of support a principle enjoys determines its weight and is a matter of degree: ‘[T]he more support we found, the more weight we could find from the principle.’ But this is surely mistaken. A principle might have been referred to frequently by the courts as binding, but have little weight. The degree of support may sometimes be evidence for a principle’s weight, but it need not be and the two notions are not logically related.

Legal principles may be valid in precisely the same way that rules are. They may, for example, be enacted in a constitution or in a statute, as some of Professor Dworkin’s own examples show. It

47 Ronald Dworkin, “The Model of Rules II,” Taking Rights Seriously, Cambridge: Harvard University Press, 1978, p. 46.48 Joseph Raz, “Legal Principles and the Limits of Law,” Ronald Dworkin and Contemporary Jurisprudence, ed. by Marshall Cohen, New Jersey: Rowman and Allanheld, p. 77.

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is true, though, that some legal principles are law because they are accepted by the judiciary. It is, however, an important point which does necessitate a modification of Hart’s criterion of identity. But here again Professor Dworkin claims too much. He claims that if the master rule says merely that whatever other rules the community accepts are legally binding, then it fails to act as an identifying criterion distinguishing between law and social norms. Had all social customs in all countries been legally binding, this would have been a valid criticism. Some countries, however, do not recognize custom as a source of law at all. These legal systems which do regard customs as legally binding do so only if they pass certain tests. These tests, if they are not set out in a statute or some other law, are laid down by the rule of recognition, which determines under what conditions social customs are binding as law.

The rule of recognition, therefore, does serve to explain the legal status of general community customs. It cannot, however, explain in the same way the legal status of judicial customs. Since it is itself a judicial custom it cannot confer any special status on other judicial customs. Judicial rule-making, as I indicated above, differs in this respect from the evolution of principles by the courts. A rule becomes binding by being laid down in one case as a precedent. It does not have to wait until it is accepted in a series of cases to be binding. It is binding because of the doctrine of precedent which is part of our rule of recognition. Principles evolved by the courts become binding by becoming a judicial custom. They are part of the law because they are accepted by the courts, not because they are valid according to the rule of recognition.

Hart’s criterion of identity must be modified. A legal system consists not only of one customary rule of the law-enforcing agencies and all the laws recognized by it, but of all the customary rules and principles of the law-enforcing agencies and all the laws recognized by them. This is an important modification, but it preserves the fundamental point underlying Hart’s criterion and shared by many: namely, that law is an institutionalized normative system and that the fact that the enforcement of its standards is a duty of special law-enforcing agencies is one important feature which distinguishes it from many other normative systems. The importance of this feature of law is made manifest by distinguishing between legal and nonlegal standards according to whether or not the courts have an obligation to apply them, either because they are themselves judicial custom or because judicial customs make their application obligatory.”49

Professor Dworkin’s second argument is repeated and responded to by Raz in this manner.

“Professor Dworkin has a second argument disputing the possibility of formulating an adequate criterion of identity. ‘True,’ he says, ‘if we were challenged to back our claim that some principle is a principle of law, we would mention any prior cases in which that principle was cited, or figured in the argument. . . . Unless we could find some such institutional support, we would probably fail to make out our case . . . . Yet we could not devise any formulate for testing how much and what kind of institutional support is necessary to make a principle a legal principle.’ In this passage Professor Dworkin is rejecting not merely Hart’s version of the thesis of the limits of law but all versions of the thesis. He agrees that if legal and nonlegal standards can be distinguished, this could only be done by relying on the fact that only legal standards have adequate institutional support in the practice of the courts. He denies, however, the possibility of a general explanation of what counts as adequate institutional support. It follows that it is impossible to provide a general account of the difference between legal and nonlegal standards and the thesis of the limits of law must be abandoned. What is the force of the argument? If a legal system consists, as I have suggested, of those standards which the courts are bound to recognize, we must agree with Professor Dworkin that we need a general explanation of what counts as adequate institutional support. For laws are binding on the courts either because judicial customs make their recognition obligatory or because they are themselves judicial

49 Id., pp. 79-80.

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customs. Thus the acceptability of the thesis of the limits of law depends on our ability to explain the concept of a judicial custom. But judicial customs are but a special case of social customs.

What we need is an adequate explanation of the concept of a customary norm. Once we have it we will know what judicial custom is and will have a complete criterion of identity. Hart has provided such an explanation. No doubt it is possible to improve on it, but there is no reason to suppose that the concept of a customary norm defies analysis. It is true that an analysis of the concept does not give us a decision procedure determining for every principle or rule whether or not it has sufficient support to be regarded as a judicial custom. Borderline cases will remain; they must remain for customary norms evolve gradually. But Dworkin’s is a very weak argument, which rejects a distinction because it admits the existence of borderline cases.”50

To put the same point in another way, the law has sources. That the law has sources is a result of its social and institutional character. It is a truism that law tells men how to behave or consists of standards that guide their actions. And it is part of the function of adjudicative institutions to pick out these standards in applying the law. This is as true for primitive societies as well as for sophisticated ones. In primitive societies, the courts in resolving a dispute may conclude that these standards are to be found in custom or a shared morality. In more sophisticated ones where greater emphasis is placed on spelling out these standards for clearer and more effective guidance, the courts turn to the pronouncements of law-making and law-applying institutions, like themselves, for his guidance. Hence, however primitive or sophisticated the law (so long as society is governed by it), the courts know where to look to find law or know how to identify the sources from which the legal standards applicable to the case are derived.

The sources are identified in terms of the practice of the courts. An outsider looking in at the court's behavior can observe a judicial practice or custom. From an external perspective therefore, a rule or rules can be formulated describing it. From the internal perspective on the other hand, the attitude of the courts that the practice ought to be complied with can be discerned. The ingredients that transform a practice into a binding rule are thus in place.51 Some sort of rule of recognition can be formulated,52 one which may be used to identify by means of social fact the sources with which the law's existence is determined and content identified, as well as for determining the law's existence and for identifying the law's content.

C. The Semantic Sting

The second criticism of Dworkin is more general in character. It challenges the very methodology of legal positivism and claims that it falls prey to the semantic sting. The semantic sting is a knockdown argument against all legal methodologies which avail of semantic theories of law. Dworkin insists that semantic theories, by its insistence on shared criteria of meaning, are unable to account for theoretical disagreement in law.

Dworkin first introduced certain terminology in order to construct his argument. He initially defined a proposition of law as “all the various statements and claims people make about what the law allows or prohibits or entitles them to have.”53

He then distinguished between empirical and theoretical disagreements about law.

“Now we can distinguish two ways in which lawyers and judges might agree about the truth of a proposition of law. They might agree about the grounds of law—about when the truth or falsity of other, more familiar propositions makes a particular proposition of law true or false—but disagree about whether those grounds are in fact satisfied in a particular case. Lawyers and

50 Id., pp. 80-81.51 See Hart, The Concept of Law, 79-88.52 Ibid., 9253 Ronald Dworkin, Law’s Empire, London: Fontana Press, p. 4.

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judges might agree, for example, that the speed limit is 55 in California if the official California statute book contains a law to that effect, but disagree about whether that is the speed limit because they disagree about whether, in fact, the book does contain such a law. We might call this an empirical disagreement about law. Or they might disagree about the grounds of law, about which other kinds of propositions, when true, make a particular proposition of law true. They might agree, in the empirical way, about what the statutes and past judicial decisions have to say about compensation for fellow-servant injuries, but disagree about what the law of compensation actually is because they disagree about whether statute books and judicial decisions exhaust the pertinent grounds of law. We might call that a ‘theoretical’ disagreement about law.”54

Next, he maintained that legal positivists advocated or subscribed to a plain-fact view of law, which, incidentally, he also provided a definition for.

“(Legal philosophers) say that theoretical disagreement is an illusion, that lawyers and judges all actually agree about the grounds of law. I shall call this the ‘plain fact’ view of the grounds of law; here is a preliminary statement of its main claims. The law is only a matter of what legal institutions, like legislatures and city councils and courts, have decided in the past. If some body of that sort has decided that workmen can recover compensation for injuries by fellow workmen, then that is law. So questions of law can always be answered by looking in the books where the records of institutional decisions are kept. Of course it takes special training to know where to look and how to understand the arcane vocabulary in which the decisions are written. The layman does not have this training or vocabulary, but lawyers do, and it therefore cannot be controversial among them whether the law allows compensation for fellow-servant injuries, for example, unless some of them have made an empirical mistake about what actually was decided in the past. ‘Law exists as a plain fact, in other words, and what the law is in no way depends on what it should be. Why then do lawyers and judges sometimes appear to be having a theoretical disagreement about the law? Because when they appear to be disagreeing in the theoretical way about what the law is, they are really disagreeing about what it should be. Their disagreement is really over issues of morality and fidelity.”55

Dworkin then went on to provide counter-examples to this view in the form of actual judicial cases which tended to show that the arguments in these cases seemed to be about law and not about morality or fidelity or repair. According to him, the surprising response of some legal philosophers, presumably positivists, to these counter-examples was to claim that “theoretical disagreement about the grounds of law must be a pretense because the very meaning of the word ‘law’ makes law depend on specific criteria, and that any lawyer who rejected or challenged those criteria would be speaking self-contradictory nonsense.”56

These specific criteria are in the form of shared rules: “We follow shared rules, they say, in using any word: these rules set out criteria that supply the word’s meaning. Our rules for using ‘law’ tie law to plain historical fact. It does not follow that all lawyers are aware of these rules in the sense of being able to state them in some crisp and comprehensive form. For we all follow rules given by our common language of which we are fully aware.”57

In other words, these positivists subscribed to a semantic theory. “Semantic theories suppose that lawyers and judges use mainly the same criteria (though these are hidden and unrecognized) in deciding when propositions of law are true or false; they suppose that lawyers actually agree about the grounds of law. These theories disagree about which criteria lawyers do share and which grounds these criteria do stipulate.”58

54 Id., pp. 4-5.55 Id., p. 7.56 Id., p. 31.57 Id.58 Id., p. 33.

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Dworkin then went on to argue that the ‘pretense’ or ‘fingers-crossed’ argument does not hold water. The pretense argument goes like this: “(J)udges pretend to be disagreeing about what the law is because the public believes there is always law and that judges should always follow it. On this view lawyers and judges systematically connive to keep the truth from the people so as not to disillusion them or arouse their ignorant anger.”59

Then he proceeds with its refutation. If “lawyers all agree there is no decisive law in cases like our sample cases, then why has this view not become part of our popular political culture long ago? And if it has not—if most people still think there is always law for judges to follow—why should the profession fear to correct their error in the interests of a more honest judicial practice? In any case, how can the pretense work? Would it not be easy for the disappointed party to demonstrate that there really was no law according to the grounds everyone knows are the right grounds? And if the pretense is so easily exposed, why bother with the charade? Nor is there any evidence in our sample cases that any of the lawyers or judges actually believed what this defense attributes to them. Many of their arguments would be entirely inappropriate as arguments for either the repair or the improvement of law, they make sense only as arguments about what judges must do in virtue of their responsibility to enforce the law as it is.”60

He then concludes: “In fact there is no positive evidence of any kind that when lawyers and judges seem to be disagreeing about the law they are really keeping their fingers crossed. There is no argument for that view of the matter except the question-begging argument that if the plain-fact thesis is sound they just must be pretending.”61

The positivists have a stronger, more sophisticated argument:

“There is, however, a more sophisticated defense of positivism, which concedes that lawyers and judges in our sample cases thought they were disagreeing about the law but argues that for a somewhat different reason this self-description should not be taken at face value. This new argument stresses the importance of distinguishing between standard or core uses of the word ‘law’ and borderline or penumbral uses of the word. It claims that lawyers and judges all follow what is mainly the same rule for using ‘law’ and therefore all agree about, for example, the legal speed limit in California and the basic rate of tax in Britain. But because rules for using words are not precise and exact, they permit penumbral or borderline cases in which people speak somewhat differently from one another. So lawyers may use the word ‘law’ differently in marginal cases when some but not all of the grounds specified in the main rule are satisfied. This explains, according to the present argument, why they disagree in hard cases like our sample cases. Each uses a slightly different version of the main rule, and the differences become manifest in these special cases. In this respect, the argument continues, our use of ‘law’ is no different from our use of many other words we find unproblematical. We all agree about the standard meaning of ‘house,’ for example. Someone who denies that the detached one-family residences on ordinary suburban streets are houses just does not understand the English language. Nevertheless there are borderline cases. People do not all follow exactly the same rule; some would say that Buckingham Palace is a house while others would not.”62

The sophisticated positivist legal defense fails too, according to Dworkin.

“The new story is in one way like the fingers-crossed story, however: it leaves wholly unexplained why the legal profession should have acted for so long in the way the story claims it has. For sensible people do not quarrel over whether Buckingham Palace is really a house; they

59 Id., p. 37.60 Id., pp. 37-38.61 Id., p. 39.62 Id., pp. 39-40.

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understand at once that this is not a genuine issue but only a matter of how one chooses to use a word whose meaning is not fixed at its boundaries. If ‘law’ is really like ‘house,’ why should lawyers argue for so long about whether the law really gives the secretary of the interior power to stop an almost finished dam to save a small fish, or whether the law forbids racially segregated schools? How could they think they had arguments for the essentially arbitrary decision to use the word one way rather than another? How could they think that important decisions about the use of state power should turn on a quibble? It does not help to say that lawyers and judges are able to deceive themselves because they are actually arguing about a different issue, the political issue whether the secretary should have that power or whether states should be forbidden to segregate their schools. We have already noticed that many of the arguments judges make to support their controversial claims of law are not appropriate to those directly political issues. So the new defense of positivism is a more radical critique of professional practice than it might seem. The crossed-fingers defense shows judges as well-meaning liars; the borderline-case defense shows them as simpletons instead.

The borderline defense is worse than insulting, moreover, because it ignores an important distinction between two kinds of disagreements, the distinction between borderline cases and testing or pivotal cases. People sometimes do speak at cross-purposes in the way the borderline defense describes. They agree about the correct tests for applying some word in what they consider normal cases but use the word somewhat differently in what they all recognize to be marginal cases, like the case of a palace. Sometimes, however, they argue about the appropriateness of some word or description because they disagree about the correct tests for using the word or phrase on any occasion.”63

It is an argument of the second type which lawyers and judges engage in in actual judicial cases.

“You might think that the second argument I just described is silly, a corruption of scholarship. But whatever you think, arguments of that character occur, and they are different from arguments of the first kind. It would be a serious misunderstanding to conflate the two or to say that one is only a special case of the other. The ‘sophisticated’ defense of positivism misunderstands judicial practice in just that way. The various judges and lawyers who argued our sample cases did not think they were defending marginal or borderline claims. Their disagreements about legislation and precedent were fundamental; their arguments showed that they disagreed not only about whether Elmer should have his inheritance, but about why any legislative act, even traffic codes and rates of taxation, impose the rights and obligations everyone agrees they do; not only about whether Mrs. McLoughlin should have her damages, but about how and why past judicial decisions change the law of the land. They disagreed about what makes a proposition of law true not just at the margin but in the core as well. Our sample cases were understood by those who argued about them in courtrooms and classrooms and law reviews as pivotal cases testing fundamental principles, not as borderline cases calling for some more or less arbitrary line to be drawn.”64

Dworkin then summarizes his criticism of positivism and semantic theories of law.

“If legal argument is mainly or even partly about pivotal cases, then lawyers cannot all be using the same factual criteria for deciding when propositions of law are true or false. Their arguments would be mainly or partly about which criteria they should use. So the project of the semantic theories, the project of digging out shared rules from a careful study of what lawyers say and do, would be doomed to fail. . . .

63 Id., pp. 40-41; italics Dworkin’s.64 Id., pp. 42-43.

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. . .

. . . So our legal philosophers try to save what they can. They grasp at straws: they say that judges in hard cases are only pretending to disagree about what the law is, or that hard cases are only borderline disputes at the margin of what is clear and shared. They think that they must otherwise settle into some form of nihilism about law. The logic that wreaks this havoc is the logic just described, the argument that unless lawyers and judges share factual criteria about the grounds of law there can be no significant thought or debate about what the law is. We have no choice but to confront that argument. It is a philosophical argument, so the next stage of our project must be philosophical as well.”65

This, Dworkin calls, the semantic sting. “I shall call the argument I have just described, which has caused such great mischief in legal philosophy, the semantic sting.”66

To summarize Dworkin’s point, his conclusions are based on his criticism of semantic theories of law. Semantic theories are committed to the view that law can be characterized and the truth of legal propositions determined in terms of shared linguistic criteria. As such, they all fall victim to the 'semantic sting', since they are unable to account for theoretical disagreements involved in judging the truth or falsity of individual propositions of law. Either they pretend that no disagreement whatsoever exists, these shared linguistic criteria being adequate to determine the truth of legal propositions, whatever disagreement there is being one outside law; or they insist that disagreement exists only in the borderline cases of legal concepts, there being agreement at the core, which disagreement is to be resolved purely by verbal convention, by choosing to extend the concept one way or another.

The semantic sting has limited impact. None of the jurisprudential theories of note are semantic in the way described. Hence Dworkin's argument may be valid against semantic theories, but not all jurisprudential theories are so crude. The more viable jurisprudential theories, of which the jurisprudential theory of this thesis is one, are conceptual and not semantic. The semantic sting has no effect on them, and indeed on other jurisprudential theories.

Indeed Dworkin appears to suggest that there are only two types of jurisprudential theories, semantic theories and his recommended interpretive theories, which is a jurisprudential theory based on adjudication. Since semantic theories are not viable, then only interpretive theories remain. This is a false dichotomy. Dworkin conveniently neglects conceptual and other theories, or he falsely categorizes all these viable jurisprudential theories as semantic.

Dworkin's error therefore lies in assuming that since jurisprudential theories attempt to characterize or define law, they must be, like semantic theories, purely verbal or linguistic, a matter merely of reporting the shared linguistic criteria people employ in using a word or of extending this shared or uncontroversial meaning to account for borderline cases. This argument appears to have greater force when applied to conceptual theories, since they are preoccupied with ordinary language and engage in linguistic analysis. But the point of the conceptual theorist's open concern with language and of his search for some sort of definition is not purely linguistic, the point being "a sharpened awareness of words to sharpen our perception of phenomena," an insight of Austin which Hart openly endorsed,67 or to understand our self-understanding of the world, which is Raz's view.68 Hence it is not words or language per se, which conceptual theories are interested in, or even our thoughts, but our concepts, how we understand the world, and what lies behind the concepts, the world. For the key to understanding the world lies in understanding our own concepts.

65 Id., pp. 43-44.66 Id, p. 45.67 H. L. A. Hart, The Concept of Law, p. 14. 68 This was made clear by Raz in a set of lectures he delivered in the Michaelmas Term of 1992-93, entitled "Coherence and Law".

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Indeed, ordinary language's verdict on the use of our words cannot be the be-all and the end-all of the matter. For ordinary language itself may be vague, ambiguous or inconsistent. Moreover, even when ordinary language provides uncontroversial shared truths about the phenomena being investigated, the puzzlement remains. It does not disappear with improved reporting on actual usage, or by an agreement on a set of common characteristics so as to categorize borderline cases. For the problems are deep and substantial. This is precisely Hart's point in his introduction to The Concept of Law. The book's purpose was "not to provide a definition of law, in the sense of a rule by reference to which the correctness of the use of a word can be tested; it (was) to advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system and a better understanding of the resemblances and differences between law, coercion, and morality, as types of social phenomena."69

Conceptual theories therefore are not linguistic. Hence they share with interpretive theories an appreciation of the same problem, which is to arrive at a better understanding of the phenomena under investigation, and in the inadequacy of purely linguistic enterprises to provide this understanding, but disagree in the solution and the method for arriving at the solution.

D. Inclusive Positivism

The third criticism against Hart is an internal one. Professor Raz argues that Hart subscribes to a version of positivism which endorses a weak social thesis, which fails to comply with the basic positivist insight that what is law or not law is purely a matter of social fact and not of moral considerations. Raz, on the other hand, advocates the strong social thesis, which is more precisely defined as follows: “A jurisprudential theory is acceptable only if its tests for identifying the content of the law and determining its existence depend exclusively on facts of human behaviour capable of being described in value-neutral terms without resort to moral argument.”70

To elaborate, Raz maintains that the tests for the identity and existence of a legal system contain three basic elements: efficacy, institutional character, and sources. The weak social thesis subscribes only to the first two, while the strong social thesis advocates all three.

“Most positivists are ambiguous concerning one interesting point. While their general terms suggest an endorsement of the strong social thesis, their actual doctrines rest on efficacy and institutionality as the only conditions concerning the social foundation of law. Let the combination of these two conditions be called the weak social thesis. It is easy to show that the weak and strong theses are not equivalent. Suppose that the law requires that unregulated disputes (i.e. those with respect to which the law is unsettled) be determined on the basis of moral considerations (or a certain subclass of them, such as considerations of justice or moral considerations fundamentally at odds with social morality). Suppose further that it is argued that in virtue of this law moral considerations have become part of the law of the land (and hence the law is never unsettled unless morality is). This contention runs directly counter to the strong thesis. If it is accepted, the determination of what is the law in certain cases turns on moral considerations, since one has to resort to moral arguments to identify the law. To conform to the strong thesis we will have to say that while the rule referring to morality is indeed law (it is determined by its sources) the morality to which it refers is not thereby incorporated into law. The rule is analogous to a ‘conflict of law’ rule imposing a duty to apply a foreign system which remains independent of and outside the municipal law.”71

Raz’ proceeded to show the inadequacy or undesirability of the weak social thesis under positivist principles. His argument proceeds as follows:

69 Dworkin, supra., pp. 65-68.70 Joseph Raz, “Legal Positivism and the Sources of Law,” The Authority of Law, Oxford: Clarendon Press, 1979, pp. 41-42.71 Id., pp. 45-46.

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“The difference between the weak social thesis and the strong social thesis is that the strong one insists, whereas the weak one does not, that the existence and content of every law is fully determined by social sources. On the other hand, the weak thesis, but not the strong one, builds into law the conditions of efficacy and institutionality. The two theses are logically independent. The weak thesis though true is insufficient to characterize legal positivism. It is compatible with—

(a) Sometimes the identification of some laws turns on moral argument,

but also with—

(b) In all legal systems the identification of some laws turns on moral argument.

The first view is on the borderline of positivism and may or may not be thought consistent with it. But whereas the first view depends on the contingent existence of source-based law making moral considerations of validity in certain cases (as in the example above), the second view asserts a conceptual necessity of testing law by moral argument and is clearly on the natural law side of the historical positivist/natural law divide.”72

Unfortunately, this debate internal to positivism must await the next chapter, when I discuss more fully the legal theory of Professor Joseph Raz. To Raz’s theory therefore, I now turn.

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REFERENCES

Bix, Brian, Jurisprudence: Theory and Context, London: Sweet and Maxwell, 2003Dworkin, Ronald, “The Model of Rules I,” Taking Rights Seriously, Cambridge: Harvard University Press, 1977.----------“The Model of Rules II,” Taking Rights Seriously, Cambridge: Harvard University Press, 1977.----------Law’s Empire, London: Fontana Press, 1986, Chs. 1-3.----------“Legal Theory and the Problem of Sense,” Issues in Contemporary Legal Philosophy, ed. by Ruth Gavison,

Oxford: Clarendon Press, 1987.Fernando, Emmanuel Q., Legal Theory, Legal Reasoning and Philippine Jurisprudence, to be published by the U.P.

Law Center.Gavison, Ruth, “Comment,” Issues in Contemporary Legal Philosophy, ed. by Ruth Gavison, Oxford: Clarendon

Press, 1987, pp. 21-34.Hart, H.L.A., The Concept of Law, Oxford: Clarendon Press, 1961.----------Essays in Jurisprudence and Philosophy, Oxford: Clarendon Press, 1983.----------“Comment,” Issues in Contemporary Legal Philosophy, ed. by Ruth Gavison, Oxford: Clarendon Press, 1987,

pp. 35-42.Lucas, J.R., “The Phenomenon of Law,” Law, Morality and Society, ed. by PM.S. Hacker and Joseph Raz, Oxford:

Clarendon Press, 1977.Raz, Joseph, “Legal Positivism and the Sources of Law,” The Authority of Law, Oxford: Clarendon Press, 1979.----------“Legal Principles and the Limits of Law,” Ronald Dworkin and Contemporary Jurisprudence, New Jersey:

Rowman and Allenheld, pp. 73-87.

72 Id., pp. 46-47.

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