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Two Puzzles from the Postscript

  • Philip Soper (a1)

Conversions occur in legal theory about as often as they do in religion, which is to say rarely—so rarely that they fascinate as much for the fact that they happen at all as for the reasons they happen. It should not surprise, then, that the Postscript to H.L.A. Hart's famous work on jurisprudence reveals “the outstanding English philosopher of law of the twentieth century” reaffirming, rather than revising in any significant way, the two central tenets that distinguish his theory from that of both classical natural law theorists and modern “new naturalists” like Ronald Dworkin: (1) There is no necessary connection between law and morality; and (2) judges inevitably confront cases where the decision is “not dictated by the law” and the judge “must act as a conscientious legislator would by deciding according to his own beliefs and values” (p. 273).

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1. The best-known example in legal theory is that of Gustav Radbruch, whose apparent conversion from positivism after World War II became the occasion for speculation about its implications in the classic exchange between Hart and Fuller. See Hart H.L.A., Positivism and the Separation of Law and Morals, 71 Harv. L. Rev. 593 (1958); Fuller Lon, Positivism and Fidelity to Law—a Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958).

2. MacCormick N., Herbert L.A. Hart: In Memoriam, 6 Ratio Juris 337 (1993).

3. All page references in the text are to Hart H.L.A., The Concept of Law (2d ed. 1994) (with Postscript).

4. See Raz Joseph, The Authority of Law 47 (1979).

5. “Soft positivism” is the term Hart uses to describe this position. For a book-length defense of this view, see Waluchow W.J., Inclusive Legal Positivism (1994).

6. See Soper Philip, A Theory of Law 31, 39 (1984).

7. See, e.g., MacCormick N., A Moralistic Case for A-Moralistic Law, 20 Val. U. L. Rev. 1, 2829 (1985).

8. MacCormick Neil, H.L.A Hart 162 (1981).

9. See Raz Joseph, The Authority of Law 153 (1979).

10. See Soper P., Law's Normative Claims, in The Autonomy of Law 215, 218–20 (Geortre R. 1996).

11. See Raz Joseph, Practical Reason and Norms 147–48 (1975).

12. See Soper P., Searching for Positivism, 94 Mich. L. Rev. 1739, 1741–44 (1996) (reviewing W.J. Waluchow, Inclusive Legal Positivism, supra note 5); id., supra note 6, at 101–109.

13. See Soper P., Legal Theory and the Obligation of a Judge: The Hart/Dworkin Dispute, 75 Mich. L. Rev. 473 (1977); Lyons D., Principles, Positivism, and Legal Theory, 87 Yale L. J. 415 (1977) (reviewing Ronald Dworkin, Taking Rights Seriously); Coleman J., Negative and Positive Positivism, 11 J. Legal Stud. 139 (1982).

14. See Dworkin Ronald, Taking Rights Seriously 347–49 (1977). Dworkin repeated this claim about the “essence of positivism” in his later work, suggesting that “soft conventionalism” was not really a form of positivism at all, but “a very abstract, underdeveloped form of law as integrity.” Dworkin Ronald, Law's Empire 125, 127–28 (1986).See also Raz Joseph, supra note 9, at 47 (describing and defending the “sources thesis,” but leaving open the question whether deliberate inclusion of moral standards would be consistent with positivism). For a full discussion and a vigorous defense of Hart's position, see Waluchow W.J., Inclusive Legal Positivism, Note 5

15. See, e.g., Moore M., Law as a Functional Kind, in Natural Law Theory 188 (George R. ed., 1992).

16. One might try to make Hart consistent here by suggesting that he is relying on a distinction between determinacy and objectivity that makes it possible to suggest that “moral facts” can sometimes decide cases (be determinate), while leaving open the question of the status of those moral facts (whether they are subjective or objective). (For an illuminating discussion of the distinction between determinacy and objectivity in the context of legal theory, see Coleman J. & Leiter B., Determinacy, Objectivity, and Authority, 142 U. Pa. L. Rev. 549, 600 [1993].) But this suggestion, even if plausible, goes well beyond anything Hart was consciously attempting in the postscript. It would, of course, be unrealistic and unfair to expect Hart to have attempted to do anything more in a brief postscript than sketch his basic position on these

17. Note that this latter question shifts the focus away from the traditional point of contention between positivists and non-positivists; the question is not whether law can be identified without recourse to morality; the question is whether legal theory can proceed independent of moral theory. Though the discussion in the text focuses on the question of the objectivity of moral judgments, similar questions could be asked about semantic or metaethical issues: Can one, e.g., explain what we mean by “law” without taking a position on any controversial aspect of the question of what we mean by “morality”? As this last formulation suggests, the answer to these questions undoubtedly depends on whether law is itself a moral concept—which takes us back to the traditional point of contention.

18. See Fuller Lon, The Morality of Law 3839 (2d ed. 1964).

19. Thus, Fuller himself could imagine justifying occasional retroactive laws, even though they too violated one of his eight constraints. See id. at 39, 44, 51–62.

20. In his famous Speluncean Explorers piece, Fuller imagines one judge “discovering” for the first time a dusty judicial precedent that would completely reverse what judges had thought the law was, at least in some respects, arguably requiring a different result in the case before him. See Fuller L., The Case of the Speluncean Explorers, 62 Harv. L. Rev. 616, 628 (1949).

21. See Mackie J.L., Inventing Right and Wrong (1977).

22. See Coleman J., supra note 13, at 141, 145–48 (on the distinction between a semantic and epistemic Rule of Recognition).

23. At times, Hart suggests that his soft positivism only extends to this idea of “formal” rather than substantive incorporation. See, e.g., Hart , supra note 3, at 258–59 (suggesting that his practice theory of rules explains how judges may be agreed on “the relevance” of incorporated moral tests for law, even though they disagree as to what the tests require in particular cases). For the reasons suggested in the text, I have ignored the possibility that Hart thinks of soft positivism as involving only “formal” incorporation of moral standards, with all subsequent attempts to apply such standards constituting judicial legislation.

24. Compare the believers of a religion who are told by the Head of the Church that a new revelation condemns or permits a certain practice: Wouldn't believers say that the pronouncement reveals what “God's law” was all along, rather than constituting the enactment of a new law?

25. See Herzog Don, Happy Slaves (1989).

26. See text at supra note 6.

27. Cf. The Concept of Law, ch. 5, at 8687, with id, ch. 8 at 172–80 and ch 9 at 202–203.

28. See Hart H.L.A., Essays on Bentham 156–57 (1982).

29. See P. Soper, supra note 10, at 218, 241 n.10.

30. Hart H.L.A., supra note 28, at 160; see also id. at 264–67.

31. See Soper P., supra note 10.

32. See Noonan J., 7 Nat. L. F. 177 (1962) (book review)

33. The term comes from Leslie Green, The Authority of the State, ch. 3 (1988).

34. See Raz , supra note 9.

35. For most people, it is not a justification simply to explain that “those are the rules we accept.” For that matter, even a game ultimately justifies its norms (one “ought” to move the bishop diagonally) by appeal to some underlying moral principle—e.g., consent to play the game. Note that the point is not that morality must be more than a game. Some people may believe morality is no more than a game; for that matter, some may think that morality is reducible to coercion in much the same way that Austin thought law was—social standards enforced by community censure. The issue is not how to resolve these disputes about the nature of morality; the issue is whether a particular legal system' claims are made in the same coin as the society's claims about morality and justification, whatever form those claims take. The game model, as Hart himself recognizes, explicitly distinguishes and limits its domain of normative claims from the normal domain encompassed by constitutive morality. Thus restricted, it cannot “justify” the invasions of others' interests.

36. See Soper , supra note 10.

37. See Dworkin , Laws Empire, supra note 14, at 191.

38. See Hart H.L.A., supra note 28.

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