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On Hart's Way Out

Published online by Cambridge University Press:  16 February 2009

Scott J. Shapiro
Yeshiva University


It is hard to think of a more banal statement one could make about the law than to say that it necessarily claims legal authority to govern conduct. What, after all, is a legal institution if not an entity that purports to have the legal power to create rules, confer rights, and impose obligations? Whether legal institutions necessarily claim the moral authority to exercise their legal powers is another question entirely. Some legal theorists have thought that they do—others have not been so sure. But no one has ever denied (how could they?) that the law holds itself out as having the legal authority to tell us what we may or may not do.

Copyright © Cambridge University Press 1998

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1. Allen, Woody, Annie Hall.Google Scholar

2. Cf. Hart, H.L.A., Legal Duty and Obligation in Essays on Bentham (1982)Google Scholar with Raz, Joseph, Hart on Moral Rights and Legal Duties, 4 Oxford J. Legal Stud. 123 (1984).CrossRefGoogle Scholar

3. “The judicial Power shall extend to all Cases…arising under…the Laws of the United States.”

4. Any person is guilty of a felony “who willfully attempts in any manner to evade or defeat any tax imposed by this title or the payment thereof.”

5. “The Congress shall have power to lay and collect taxes on incomes.”

6. “Congress shall have power to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

7. Legal systems without written constitutions do not escape such problems. Consider, for example, the British Parliament's claimed right to enact legislation. According to the usual story, this right derives from custom. It would seem, therefore, that the British system must contain a legal norm that confers validity on rules which have been practiced over a sufficient period of time. However, this custom-validating norm cannot itself be based on custom, for that would render this norm legally superfluous: whenever the conditions are met to validate custom-validating norms, these norms are no longer necessary. The source of this norm's authority cannot be legislative either—it is circular to claim that the custom-validating norm confers validity on Parliament when the custom-validating norm derives its authority from Parliament. If, however, the custom-validating norm derives its authority from some other source, say, from judicial practice, we would have to ask the same questions about the source of judicial authority in these matters. Again, we are forced to choose between vicious circles and infinite regresses.

8. See Austin, John, The Province of Jurisprudence Determined, Lecture VI.Google Scholar

9. Hart, H.L.A., The Concept of Law 5061Google Scholar (Bullock, Penelope A. & Raz, Joseph eds., 1994).Google Scholar

10. For a very illuminating discussion about the relationship between the U.S. Constitution and the rule of recognition, see Greenawalt, Kent, The Rule of Recognition and the Constitution, 85 Mich. L. Rev. 621 (1987).CrossRefGoogle Scholar

11. Id. at 113–16.

12. Hart insisted, nevertheless, that most of the primary rules of the legal system would have to be obeyed by most of the population most of the time if we were to say that such a community had a legal system. Legal systems must be generally, although not universally, efficacious. Id. at 103–4.

13. See also Jules L. Coleman, this issue.

14. Dworkin, Ronald, The Model of Rules II, in Taking Rights Seriously 5253 (1977).Google Scholar

15. Hart, , Concept of Law, supra note 9, at 256.Google Scholar

16. See, e.g., Coleman, Jules, Negative and Positive Positivism, in Markets, Morals and the Law (1982, 1988)Google Scholar; Lyons, David, Moral Aspects of Legal Theory, 7 Midwest Stud. Phil. 223 (1982)CrossRefGoogle Scholar; Waluchow, Wilfred, Inclusive Legal Positivism (1994).Google Scholar

17. See, e.g., Raz, Joseph, Legal Positivism and the Sources of Law, inGoogle ScholarThe Authority of Law (1979)Google Scholar; Authority, Law and Morality, in Ethics in the Public Domain (1994).Google Scholar

18. Hart, , supra note 9, at 250.Google Scholar

19. Dworkin, Ronald, The Model of Rules I, inGoogle Scholar Taking Rights Seriously, supra note 14, at 17.

20. Id. at 22–28.

21. Id. at 28.

22. Id. at 29.

23. Id. at 35.

24. Id. at 40.

25. Id. citing Hart, , The Concept of Law, supra note 9, at 94.Google Scholar

26. Hart, , supra note 9. at 204.Google Scholar

27. Id. at 141–47.

28. Dworkin, , The Model of Rules I, supra note 19, at 3133.Google Scholar

29. Id. at 34.

30. For this type of response, see Soper, Philip, Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute, 75 Mich. L. Rev. 473 (1977)CrossRefGoogle Scholar; Lyons, David, Principles, Positivism and Legal Theory, 87 Yale L.J. 415 (1977)CrossRefGoogle Scholar; Coleman, Jules, Negative and Positive Positivism, supra note 16.Google Scholar

31. Dworkin, , The Model of Rules II, supra note 14.Google Scholar

32. Coleman, , Negative and Positive Positivism, supra note 16, at 20.Google Scholar

33. Hart, , supra note 9, at 258.Google Scholar

34. Id. at 258–59.

35. Dworkin, Ronald, A Reply by Ronald Dworkin, inGoogle ScholarDworkin, Ronald and Contemporary Jurisprudence 252Google Scholar (Cohen, Marshall, ed., 1984).Google Scholar

36. Id. at 253.

37. Id.

38. Marbury v. Madison, 1 Cranch 137, 2 L.E.d. 60 (1803).Google Scholar

39. Hart, , supra note 9, at 153.Google Scholar

40. Dworkin, , supra note 35.Google Scholar

41. See Coleman, Jules L., Incorporationism, Conventionality, and the Practical Difference ThesisGoogle Scholar, this volume.

42. See, e.g., Dworkin, Ronald, Laws Empire 96 (1986).Google Scholar

43. Id., ch.4.

44. Id. at 117.

45. Id. at 140–42.

46. Hart, , supra note 9, at 249.Google Scholar

47. Dworkin, , supra note 42, at 4546Google Scholar. See also Joseph Raz's contribution to the symposium.

48. See, e.g., Shapiro, Scott J., The Bad Man and the Internal Point of View, inGoogle Scholar, The Legacy of Oliver Wendell Holmes, Jr.: The Path of the Law and Its Influence (Burton, Steven J. ed., forthcoming 1998).Google Scholar

49. Hart, , supra note 9, at 5557.Google Scholar

50. It is a mistake, therefore, to interpret Hart as meaning that someone takes the internal point of view toward a rule whenever the person believes that the norm imposes a moral or social obligation to obey. See, e.g., Schauer, Fred, Critical Notice of Roger Shiner's Norm and Nature: The Movement of Legal Thought, 24 Canadian J. Phil. 495, 501–2CrossRefGoogle Scholar. Hart is explicit that a person can accept the law and guide his conduct accordingly even if his allegiance is based on self-interested considerations. See, e.g., Hart, , supra note 9 at 198.Google Scholar

51. Hart, , supra note 9, at 3839 (numbers added).Google Scholar

52. Id. at 92.

53. Id. at 116.

54. Hart, , Commands and Authoritative Reasons, inGoogle Scholar Essays on Bentham, , supra note 2, a 253.Google Scholar

55. Hart, , supra note 9, at 51.Google Scholar

56. Hart, , Essays on Bentham, supra note 2, 158–59.Google Scholar

57. This argument has much in common with Joseph Raz's critique of inclusive legal positivism. See, e.g., Raz, , Ethics in the Public Domain, supra note 17Google Scholar. The arguments are not the same, however, insofar as they use different concepts of “mediation.” For Raz, rules mediate between reasons and people, not between competing standards of conduct.

58. To be precise, the problems associated widi inclusive rules of recognition apply only to their inclusive parts. Inclusive rules can contain pedigree criteria of validity as well.

59. This statement is a bit too strong. Moral rules do not change relative to a set of behaviors. Over time, new behaviors emerge and new rules may come into being because of the existence of these behaviors. But the old behaviors will be subject to the same rules.

60. I thank Brian Bix for suggesting this possible defense of Hart.

61. It is trivially true that derived rules cannot epistemically guide, for we have seen that contentful marks are useless as authoritative marks. The only interesting question is whether they can motivationally guide.

62. This section was prompted by a challenge made to me by Ben Zipursky.

63. See, e.g., Hart, , supra note 9, at 72Google Scholar; Hart, , Positivism and the Separation of Law and Morals, at 51.Google Scholar

64. Hart, H.L.A., Lon L. Fuller: The Morality of Law, in Essays in Jurisprudence and Philosophy 361.Google Scholar

65. Cite to Coleman.

66. “Rules are conventional social practices if the general conformity of a group to them is part of the reasons which its individual members have for acceptance.” Hart, , supra note 9, at 255.Google Scholar

67. Contrast this picture with Dworkin's theory oflaw. Arguably, for Dworkin the point of legal practice is not functional. The law is not meant to secure benefits that would not be available without it. The benefits are secured by state coercion—the role of the law is to justify this coercion. In Dworkin's nonfunctionalist framework, it is a mistake to ask “For what purposes do these legal rules exist?” Like the rules of critical morality, there is no reason why any legal rule exists—they simply do. We would not say, for example, that the purpose of the moral rule against murder is to enable people to live up to their moral obligations not to murder. For Dworkin, the existence of the legal rule against murder does not depend on such functional considerations either. Legal rules do the same kind of normative work as do moral rules—both sets of rules are essentially justificatory. They may guide conduct when people recognize that they exist, but they do not exist in order to guide conduct.

As one might expect, therefore, the concept of rule-guidance does not play a prominent role in Dworkin's theory. Because legal rules do not exist in order to guide conduct, there is no requirement that they make practical differences. A legal rule exists if it justifies past political acts; it need not be capable of motivating agents to act in ways they might not have acted had they not appealed to these rules. Moreover, the mere fact that certain people guide their conduct according to a rule is not sufficient by itself to ensure that the behavior gives people reasons to act. Legal rules can no more be grounded in actual practice than morality can. Rule-governed behavior can never be made to depend on rule-guided behavior because no one has the authority to change the moral law.

68. See Raz, Joseph, The Identity of a Legal System and Legal Validity, in The Authority of Law (1979).Google Scholar

69. According to the exclusive positivist, the “legal obligation” operator is opaque to moral implication. If someone is legally obligated to p, and morally obligated to q if p, it does not follow that such a person is legally obligated to q.

70. Dworkin, , Model of Rules I, supra note 14, at 29.Google Scholar

71. Dworkin, Ronald, Reply to Raz, inGoogle ScholarDworkin, Ronald and Contemporary Jurisprudence 262.Google Scholar

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