Friday, November 20, 2015

Is The Concept of Law a Good Book? Part 2: What Is the Book about?

John Gardner, not exactly a harsh critic of Hart or CL, wrote that “[Hart] is the metaphysical monocyclist who, as soon as he begins to wonder how he stays upright, wobbles and risks falling off. His forays into the investigation of his own philosophical outlook, with the possible exception of his rejection of a crudely lexicographical approach in his inaugural lecture, were not notably successful.” Leslie Green, someone else who thinks that we should continue to read the book has written: “Hart’s methodological reflections came late in his career and were sketchy and inconclusive.” That’s only half true. Hart’s remarks on methodology were indeed sketchy and inconclusive, but one finds them from early on. Though Hart did not write a methodological paper per se, he made methodological remarks throughout his writings (Hart’s 1953 Inaugural Lecture has a lot to say about method); CL itself has many such remarks, scattered throughout the book.

It is tempting to say that if even they say such things, there is no need for me to pile on, but pile on I will. The main reason is that while these quotes suggest that Hart was doing a good job in explaining law, but was far less assured in explaining what he was doing. I think the problem is more serious. Hart was not clear about what he actually trying to do in the book, and that has resulted in numerous, and conflicting, explanations of law throughout the book.

We can start at the start, CL’s Preface and its first chapter. Chapter 1 is a short introduction to the themes of the book. Though rather elegantly structured, it is characteristically vague; and I think it is fair to say that whatever fame CL has does not depend on anything found in these pages. One finds there a setup of supposedly “recurrent issues” that somewhat tendentiously explain what comes later in the book. It is not obvious that when people ask “what is law?” they are really asking, in a more oblique way, “How does law differ from and how is it related to orders backed by threats?”

No matter. Chapter 1 was a lead for the rest of the book, not an essay in the philosophy of social explanation. And that is perhaps the problem, because, it is unclear from this chapter (or from what comes later) what it is that Hart was trying to do in The Concept of Law. As a result, to this day, there is a fundamental disagreement among readers of the book (sometimes the same one) on this simple question.

According to the first reading of CL Hart provided a purely philosophical, i.e. a pre-sociological account of the nature of law, as it is in all times and places. There is some support for it in the text. The purpose of the book, Hart says early on, is “to advance legal theory by providing an improved analysis of the distinctive structure of a municipal legal system.” And later when he said that “There are…two minimum conditions necessary and sufficient for the existence of a legal system” (CL 116) he also sounds like he is making claims of this kind. After all, the whole analysis of law as primary and secondary rules is not something that could be said to be part of existing lawyers’ attitudes about law, even less so the claim that it is the union of primary and secondary rules that distinguishes the pre-legal from the legal. 

The second view emphasizes the sociological aspects of Hart’s enterprise. Some years ago Gardner gave a good summary of this view:
According to the approach of Causation in the Law…the world is irreducibly carved up as we already carve it up. True, there is causation in the objects, out there in nature, and it would be so even if there were no people to conceive of it. Scientists can help us detect it and explain its patterns. But its being causation is neither settled by nature nor amenable to empirical study. Its being causation is settled by the classificatory machinery of human thought and amenable only to philosophical (Hart would never have said “metaphysical”) reflection. Much the same antireductivist themes, in my view, dominate The Concept of Law. Both books are located firmly in the Aristotelian tradition of “respect for appearances”, which are rightly held up by Hart as partly constitutive of realities. 
Defenders of Hart (Gardner included) usually favor the first reading. No surprise there. The first reading makes Hart a philosopher, on the second he is a “mere” sociologist. More importantly, the first reading makes for a seemingly viable domain of inquiry: even if Hart’s account is thought mistaken, this reading leaves his followers with a field or a question that almost by definition cannot be invaded by any empirical inquiry. The sociological reading of Hart makes for a far more vulnerable domain: it is not just that Hart cannot claim to have discovered some timeless “nature of law,” the whole domain seems liable for replacement by more rigorous empirical inquiry. If it is “respect for appearances” which are "partly constitutive of realities" that Hart is after, then those realities can turn out to be empirically far more complex, and far less uniform in different times and places, than Hart assumed.

The first problem with Hart’s book, then, is not just that it does not do a good job of explaining its methodology (as Gardner and Green suggested), but it is fuzzy and conflicting about what kind of claims it seeks to make, a fuzziness carried over to the substantive discussions appearing later in the book. I suggested here two readings, and as I will attempt to show later, there is yet another.

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