The earliest version of this paper was presented to the Conference on Law, Liberty and Community in 1984 at the University of Victoria. Subsequent versions were presented at the University of Waterloo and the University of Western Ontario, and to the Canadian chapter of the International Society for Philosophy of Law and Social Philosophy. Those whose detailed comments on one or more of these versions have helped me to see many of the errors of my ways are Dick Bronaugh, David Copp, Antony Duff, Barry Hoffmaster, Michael McDonald, Wayne Sumner and Wil Waluchow. I am very grateful to all of them. Some of them will see far more errors still remaining than will others of them; but I guess that happens with friends.

1. Hull, C.L. coins the phrase in his Principles of Behavior (London: D. Applelon, 1943).Google Scholar

2. Note that this ‘behaviouristic’ position is a sufficient condition of regarding the existence of law and the acceptance of law as contingently connected. It is not a necessary condition. It may be claimed that even if we regard the general stance towards law as intentional, that stance may only be contingently one of acceptance. I believe that this issue is far from a simple one. I address it laterin this paper. For the moment, I abide by the attribution to simple positivism of a particularly crude and parsimonious position.

3. A fortiori and in particular, not John Austin; see below.

4. Hart, H.L.A. The Concept of Law (Oxford: Clarendon Press 1961).Google Scholar

5. Hart speaks of the latter as ‘implicit’ in the two previous elements; I leave unaddressed the question of whether the ‘internal aspect’ of rules is only the third element,or whether it is all three elements, or whether it matters which.

6. I realize I am opting here for one construal of the status of facilitating rules. Since they are neither‘rules about rules’ nor duty-imposing rules, they do not fit happily into the ‘primary rule’/‘secondaryrule’ distinction, at least as that was made by Hart in ch.V s. 3 of CL.

7. See here Ronald, Dworkin, ‘Principle, Policy, Procedure,’ reprinted in A Mailer of Principle (Cambridge, MA: Harvard University Press, 1985),ch.3.Google Scholar

8. See here Derek, Beyleveld Roger, Brownsword, Law as a Moral Judgment (London: Sweet and Maxwell, 1986),ch.8.Google Scholar

9. See here Honoré, A.M. ‘Groups, Laws and Obedience,’ reprinted in his Making Law Bind (Oxford: Clarendon Press, 1987),36.Google Scholar

10. See Michael, Payne, ‘Hart’s Concept of a Legal System,’ (1976), 18 William and Mary Law Review 287–319.Google Scholar Rodger, Beehler ‘The Concept of Law and the Obligation to Obey’ (1978),18 American Journal of Jurisprudence 120–42,Google Scholarraises essentially the same problem. His paper was published later, and so came to my attention later, than Payne’s, though note 7, p.142 indicates it may have been written earlier. The Hodson Problem, as it were, that Hart’s minimal legal system is satisfied by a crueldictatorship (cf. John Hodson, ‘Hart on the Internal Aspect of Rules’ (1976), 62Archiv für Rechts- und Sozialphilosophie 381–99) I take to be the limiting case of the Payne Problem. Roscoe Hill, ‘Legal Validity and Legal Obligation’ (1970), 80 Yale Law Journal 47–75, is working the same street. However, he represents the problem as being that the analysis of obligation-imposing rules in CL ch.5 is irrelevant to the analysis of legal obligation at the ‘minimum condition’ passage. As will become clear, it is misleading to think of this passage as giving an account of ‘legal obligation’—as misleading as to think of Austin as giving such an account.

11. Cf.‘Legal and Moral Obligation,’ inMelden, A.I. ed.. Essays in Moral Philosophy (Seattle: University of Washington Press, 1958),93.Google Scholar

12. Graham, Hughes ‘The Existence of a Legal System,’ (1960), 35 New York University Law Review 1001–30, at 1011.Google Scholar

13. John, Austin. The Province of Jurisprudence Determined,Lecture 6 (New York: Humanities Press, 1965).Google Scholar

14. This minimal level of conformity is defined by Wayne Sumner to be ‘conformity’ as such; cf. The Moral Foundation of Rights (Oxford: Clarendon Press 1987),63, ‘in order to conform to a rule Ineed not even know that it exists or applies to me’. There is no set of canonical meanings which rule out either his idiolect or mine as mistaken. The important thing is the identification of the phenomenon.Google ScholarPubMed

15. I think in fact it is wholly implausible that an observer from the external point of view could identify a ‘sovereign’, or even a ‘command’. But I shall not press the point here.

16. Even when he orders them not to be sheep? Well, really!

17. ‘Why can’t a dog simulate pain? Is he too honest? Could one teach a dog to simulate pain? Perhaps it is possible to teach him to howl on particular occasions as if he were in pain, even when he is not. But the surroundings which are necessary for this behaviour to be real simulation are missing.’, Ludwig, Wittgenstein, Philosophical Investigations (Oxford: Basil Blackwell 1958),s. 250.Google Scholar

18. A Just Vindication of the Church of England from the Unjust Aspersion of Criminal Schism (Dublin 1674), 11.56. A note about ‘acquiescence’ in Hart. At 197 in CL he treats ‘acquiescence’ as equivalent to ‘obedience’ (in his technical sense). On p. 114 he refers to the ordinary citizen in the minimal legal system as ‘acquiescing in the rules by obeying them for his part alone’. It is not clear whether this sentence makes the two terms equivalent or not. At 60 Hart writes that the ordinary citizen ‘manifests his acceptance largely by acquiescence’. This is equivocal. If ‘acquiescence’ is equivalent to ‘obedience’, and ‘obedience’ is incompatible with ‘acceptance’, then the remark at is nonsensical. On the other hand, if the remark ast 60 is legitimate, and ‘sheep-like acquiescence’ is a form of acceptance from the internal point of view, then it becomes even less clear how Austin so sadly failed in characterizing the nature of law. The OED in fact lists as senses of ‘acquiesce’ and cognates both ones which connote acknowledgment of authority, thus coming close to Hart’s ‘acceptance’, and ones which connote silent or ‘mere outward’ conformity, thus coming close to Hart’s ‘obedience’. Thus Hart’s slides in the use of ‘acquiescence’ seem faithfully to reflect ambiguities in the term itself. In general it does not seem unfair to say that one source of difficulty in coming to grips with this part of Hart’s theory is caused by his using ordinary fuzzy-edged and imprecise terms as if they were hard-edged technical terms, yet without stating what the hard-edged technical meaning is.

19. ‘Notes for Lectures on “Private Experience” and “Sense-Data”’ (1968), 77 Philosophical Review,275-320, at303–4.Google Scholar

20. I have discussed at length elsewhere the deleterious effects of this ‘picture’ with respect to another complex philosophical problem, that of how to understand the expressive qualities of works of art. See‘The Mental Life of a Work of Art’ (1982), 40 Journal of Aesthetics and Art Criticism 253–68,passim.Google Scholar

21. These documents are the Canada Act 1982, a statute of the Westminster parliament, which includes the Constitution Act containing the Charter of Rights and Freedoms; thirty other Acts and orders which are schedules to the Constitution Act; and any subsequent amendments to the foregoing. As Peter Hogg points out (Constitutional Law of Canada. 2nd. edn. [Toronto: Carswell Company 1985], 6–7), the wordingof s.52(2) says merely that the Constitution of Canada ‘includes’ these documents. There are a numberof other plausibly constitutional documents, including, e.g., the Supreme Court Act, which are not onthe schedule. There are also those conventions of government which ‘are not contained in any authoritative written instrument’. We shall assume any identification problems these further materials are soluble.

22. Cf. ‘Hart’s Philosophy of Law’, in P.M.S. Hacker and J. Raz, eds., Law, Moralityand Society: Essays in Honour of H.L.A. Hart (Oxford: Clarendon Press 1977) 1–25, at 16. The distinction accountants actually use is between ‘tax avoidance’, a perfectly legitimate activity and (in the libertarian political morality) even a right, and ‘tax evasion’, which is criminal. Hacker’s point seems to require the taxevader,for he or she will most likely have the external point of view. However, the tax-avoiderseems most likely to be the enthusiastic reader of the Income Tax Act. The tax-evader is a perverse or incompetenttax-avoider.

23. Soper misleadingly talks of the ‘involuntary, passive stance’ of those who benefit frompublic good regulations (A Theory of Law [Cambridge, MA: Harvard University Press, 1984], 72). I think the remark is misleading, because our stance towards such regulations when we simply live in an environment which they regulate is neither ‘active’ (unlike the manufacturer or the environmental activist) nor ‘passive’ (unlike the residents of the company town who put up with pollution for the sake of jobs).

24. Cf. Michael, Payne ‘Law Based on Accepted Authority’ (1982), 23 William and Mary Law Review 501-28, at 508,Google Scholar (Shiner, Roger A. ‘Hart and Hobbes’ (1980), 22 William and Mary Law Review 201).Even though this latter paper is the ancestor of the present discussion as concerns my own thinking, the view of Hart is quite different.Google Scholar

25. Ludwig, Wittgenstein, The Blue and Brown Books (Oxford: Basil Blackwell 1960).Google Scholar

26. Sumner claims that ‘I conform to a rule prohibiting murder just in case I do not commit murder’(MFR 63; my emphasis). The material equivalence is a mistake. My not committing murder is compatible with, and even (I am trying to argue) evidence for, my accepting the law. Thus it is possiblethat I both conform to the law by not committing murder and accept the law. Therefore it is false that if I do not commit murder I conform to the law. The response might be that, by definition, accepting includes conforming though not the reverse. I have already given reasons for doubting this claimed inclusion; see above at p. 93.

27. Cf. Nic Eth 1.8, II.1; de Anima II. 1.

28. The truth of this remark is not confined to those specialized occasions where being asleep is the virtuous thing.

29. ‘Legal Obligation and the Moral Nature of Law’ (1980),61 Juridical Review at79.Google ScholarPubMed