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JURISPRUDENCE: THEORY AND CONTEXT Fifth Edition BRIAN H. BIX ‘SWEET & MAXWELL THOMSON REUTERS Chapter Three H.L.A. Hart and Legal Positivism AN OVERVIEW OF LEGAL PostT Legal positivism is based on the simple assertion that the proper descrip- tion of law is a worthy objective, and a task that needs to be kept sepa rate from moral judgments (regarding the value of the present law, and regarding how the law siould be developed or changed). In the more precise terms of theorising about law, itis the view that a descriptive, or Pi east morally neutral, theory of law is both possible and valuable. Early ‘advocates of legal positivism included Jeremy Bentham (1748-1832) and “John Austin (1790-1859). One could also dig deeper, and place the roots ‘of modern legal positivism with the philosophers and political théorists ‘Thomas Hobbes" (1588-1679) and David Hume (1711-1776) Tn simple terms, legal positivism is builtaroune the belie(—or perhaps the assumption of the dogma—that the question of what is the law is separate from, and mustbe kept separate from, the question of what the faw should be. The position can be summarised in the words of John Austin: find other char While the abowe text eft the generally aceeped view, one wee stoas af legal ponseam. One prominent theorist orl argued that egal Jostisam should be undemiood narrowly a proposition about when a given nor Peel wali. See Join Gardner, Legal Ponti, 5% Myths", 46 Amara Jara! ‘fFurupraane 199 (2001, eee Copies Thomas Hobos and the Intellectual Origins of Legal ost’ Te canadian Jeena La sud Jursprade 248 (203); Mak C. Murphy, "Was Hobbes Legal Posts?” 105 Bes 846 (195). JUTE Witte doi George Chri and Patrick Martin (ed), Juprad: Ten ond ‘Reads ie Ploy of en (Bet, St Paul; West Publishing, 2008), Ch. 5.Jo Frantgoes ew step ether, and tates that dhe groundwork To legal pit Tee Siiiahmcet of huran-pnited law asm acparate sbjectatter) was lai by (Maral weiter in partial by Thomas Aquinas Jon Finis, “The Trach in Legal Poatleny” in The futnoy of Lew (R George ed Clarendon Press, Oxford, 1996) Pon igScaIh T divin the connections and diferences between Aquinas view ac ‘oder legal positivism inch. 3. en HLA. HART AND LEGAL POSITIVISM. “The existence of law i one thing; its merit or demerits another. Whetber it ber be nots one enquiry; whether it be or be not conformable to an assemed standard, is differen enquiry A Taw, which actually exists, ia law, tbough we happen to dislike itor though it vary from the text, by which we regulat: our approbation and disapprobation."* Legal positivism seeks from the study of law nothing more and nothing less than what is considered the foundation of modern social theory:that social institutions can be studied in an objective fashion, free from bias or ideology. Such separation does not deny in fact, theorists advocating legal positivism usually strenuously assert that something identified as “aval law” or “a valid legal system” may sometimes be sufficiently evil ‘or unjust that it should not be obeyed.® The notion that the description ofa practice or an institution should be prior to and separate from its evaluation seems to modern audiences 100 ‘obvious to need declaration, let alone justification.’ However, the contro- versial nature of legal positivism becomes clearer when we keep in raind both the history of writing about law and the type of institution law is. ‘As to the first point: historically, much of the writing about law in general (as contrasted with writing about specific legal systems, which discusses which rules are in force or should be in force) involved moral and political inquiries regarding under what conditions government was legitimate and (the apparently related question) under what conditions citizens have a moral obligation to obey the law. ‘To some, the pointof a ‘morally neutral description of law was unclear, especially ifthe thearist had a’moral or religious basis for criticism and prescription.* [As to the second point, law isa practice so infused with moral-sound- ing claims (eg. that citizens “ought to do X”, where “X” is some action * John Austin, The Pater of Jripradncr Dutra, Lecture V (WE. Rumble e. Cambridge University Pres, Cambridge, 1995) first published in 882), p. 157 This approach to sil theory has Been challenged in various ways, mot let by shone who believe tat socal practices can only be understood im a “hermeneutic vay, On the connection between lal postvit, hermeneutic theory, and the po ‘ity of este ocala legal theory, see Stephen R. Perey; "Taterpretation aad ethology in Lege Theory in Law and Iteration (A. Marea, Claredon yess, Oxford, 1995) pp.97 15; Brian BinHe. Hartand dhe Hermeneutic Turn in Legal Theory" 53 SMU Law Rese 167 (1999), © Seve. HLLA. Hart, "Positivism and the Separation ofLaw and Moras" 71 Menard de Revs 9 (1958, app 615-6 ths book. Though the later has longer history, to many people's way of dine legal postive, separating description and cvaation, woul acer the sal ‘aul view, while natural law theory woul ecm the unoul position that nec to br explained or justified As veenly a the 1th centry, exactly the oppoaie wate * Stee: Richard Dien Wind, La in Ci! Sucty (University of Kanens Fre, serene, Kansas, 195), pp. 5. AN OVERVIEW OF LEGAL POSTTIVISM 35 required by the legal ruls) and moral-sounding terminology (c.g, legal “rights” and “obbligations”) that a strictly descriptive theory of law seems ither dificult or inappropriate, for the same reason that a “descriptive theory of morality” or a “descriptive theory of justice” sound strange, though one cax find descriptive theories of both types. Additionally. the process of cetermining which norms are part of the legal system ("Tegally valid") and which are not often seems to involve moral analysis: whether it is the moral justifications in creating new ‘common law rules, the rroral justifications that seem to underlie certain judicial interpretations of statutes, oF the use of moral-sominding consti= tutional norms to invalidate statutes.” For these reasons, the ability to do description or analysis without recourse to moral evaluation is far {rom obvious “This may be a good epportunity to note that a number of different formulations have been affered over the years to define legal positivism, “Most ofthese do a good job of capturing the sprit of legal positivism, but almost all of them can be found to be incomplete, inaccurate or mislead ing in some way.” One can be sympathetic to Joseph Raz’s response to the boundary-drawing exercise; “These reflections may hep explain why I am refering not to ‘legal post ism’ but to theories in the positivist tradition, Theories belong to a tradition by thei frame of reference, sense of what is problematic andl what is not, and by similar historical features which do not presuppose that they all share a central credo." 1 also share Ray's view that Andrei Marmor’s suggestion of what ‘common to all versions of legal positivism —“that determining what the law is does not necessarily, ot conceptually, depend on moral or other evaluative considerations about what the law ought in the relevant ‘ircurstances""—may be as good as any. It is important to note that the idea of the separation of law and morals, the “separability thesis” associated with legal positivism, can ‘operate at one of three levels: (I) the question of whether the legal status (legal validity) of « rule or norm can be separated from a moral ® Morality plays so many lage and small cles in lgal practice chat a to-narrow Linderaaning of legal postvien’s separation thesis” would almost certainly be fase: Sr Jouoph Rass “Abst Morahty id the Nature of Law", 48 meran Joely Jesper (2003). Re fouph Ras, “Tne Axpument fiom Justice, or How Not to Reply to Legal Pontvt” i a, Rights ond Discus: The Legal Philosophy of Raber Ales (Gorge asakos, ed, Hart Publishing, Oxford, 2007), pp. 17-36. ib ot 23. 1 Andiei Marmor, Psitoe Lav and Objet Vals (Caeendon Press, Oxford, 2001) 36 LA. HART AND LEGAL, FOSTTIVISM. ) the question of whether the legal status of arule or norm sytem can be separated from a moral evaluation ofits ‘content fa question ofien discussed in terms of whether the Nazi regime had aw or not}; and (3) the question ofthe role of moral standards in the consruction ofa theory of law: These three levels do overlap, but they, initially at least, raise distinct issues!* Tn contemporary writing, there are two main lines of thinking within the legal positivist tradition. The one associated with the work oF L.A. Hart will be summarised in this chapter; the one associated with Hans Kelsen will be described in Chapter 4 The attempt to place the study of law on a “scientific” foundation objective and pure! ofbias —led many of the early legal positivist. ry tocreate a strictly empirical way of understanding legal ations and legal concepts, thus understanding law as function of pas, current or future facts. This search in legal theory for a purely factual grounding can be seen as deriving from the broader search fora “scientific” approach to the social sciences that could match the approach used in the "hard s ences” (eg physics and chemistry), whereby theories would be based only con “objective” observations of events that could be easily reproduced oF confirmed by other theorists (in somewhat more technical language, the ‘normative" in law is reduced to the “empirical”)° Thus, legal rules ‘were analysed in terms of past tendencies to obey, the use by legislators of particular kinds of language, the future likelihood of the imposition of | sanctions, predictions of what judges were likely to do, and so on, TLL.A. Hart’ significance comes in part from the way he moved legal positivism in a different direction. While he continued to insist on Ue {importance ofthe conceptual separation of law from morality (the sepa- ration of describing what law is, from advocating how law should be) he criticised attempts to analyse law in strictly empirical terms. In this, be was following a growing and influential view, thatthe social sciences "Thi is connected with the saying tributed to Natural Law theory, Yes insta late” Can onus lis tla”), dacused in Ch 6 Se alo Guay Racbrc's faimous ormula": Gustav Radbruch,"Stattory Lawlesnem and Supra-Stantcy aw, 26 Osid Jounal of Legal Sas (2006) (ran. Bonnie L.Paulon and Stacy alee). Foran argument thatthe disagreement between legal poscvim are natural iw theory resides largely inthe third form of paral, see Brian Bix, “On the Divi Lie Between Natural Law Theory and Legal Posie,” 75-Nate Dane Lae Ree Tats (2000 Hans Kelcn referred to his theory as “rine Rete” the pure teary of lw” His view is ccused in Ch 4 © Thasortof"science envy was alo exemple in the ie of formalism” inlega ec «aton,in particular in the inflental ideas of Harvard Law School Dean Christer Clurabus Lange See, eg Anthony Kronman, The Lat Lawyer (Harvard Unversity Pree, Cambridge, Mase, 1998), pp. 170-1741 discs Langella legal formalise riety atthe beginning of Ch. 1 SUMMARY OF HART'S FOSITION 37 require an approach distinetly different from that used in the hard sci tenees, an approach based on understanding not merely the actions that ‘occur, but also the meaning those actions have to the participants in the practices or institutions being studied. SUMMARY OF HART'S POSITION At the time that H.L.A. Hart (1907-1992) began forming his legal theory, an influcutial view within the legal theory literature was that law was best understood as the command of a sovereign to its sub: jects."" Hart’s approach to legal theory can be seen as a reaction to the ‘comand theory, and he presented his theory in that way on a number of occasions. The “command theory” (identified primarily with Austin, though Bentham also put forwerd version)" offered a picture of law as a matter of commands (orders backed by threats) by a sovereign (one who is habitually obeyed by o-hers, but who does not habitually obey anyone lsc} to citizens, Hart found weaknesses at almost every point. Firs, it ‘was hard to speak of there being a sovereign —a person or entity that is habitually obeyed, but has ne habit of obedience to any other person or centity—in most modern governments, where even the highest govern mental roles and institutions are subject to legal restraints. Secondly, the concept of a sovereign creates difficulty in explaining the continuity (of law: for when someone new takes over, that person has no history of being habitually obeyed. Thirdly, there is much that is significant within legal systems that is lost i one looks only to the commands backed by "The foundational work adweating x hermeneutic approach to socal thery is prob ably Max Weber, aoe Max Webcr, Ezamomy end Seca (G- Rosh andl C. Witch Bedminster Press New York, 1908), vol 1, pp. 4-24 Max Weber, "“Objectiiy” in Social Sence snd Social Palicy” in The Md oh Sail cee (Es Shs ane 1 Finch eds, vee Peay New York, 16), pp 30-112. Hart’ inet inence {and s soure almost as important as Weber on this topic) was Peter Winch, he es f sil Sine (Rove, London, 1958) ae Hast, The Cop o La, pp. 289, 297 This pions ascribed by Hart and by ena eters, tJohin Austin See, eH The Cnc of Lan pp 18-25, Sone hae aged that this states Austin post frat Test hat ites many ofthe subeeis of hi argument See,e W.L, Morison, al Asin dwar Arwol, London, 1982p 178-205; Roger Caterell, The Pics @ fetpradmesterworts, Land, 1985), pp. 6-65, 74 iar, "The Separation of Liw andl Morality pp-600-CO6; Hat, The Canapt of La pp. 16-125, Some legal commentator conser Henthans leg ‘Austins beer known because Rertha’sUhory was meat fly claborated in a fet that di oc appear in fe Fl form gn over a century ar the author's death See Jeremy Bent, Of Lasix Govral HLA. Hart, ed. Athlone, London, 1970) TELIA. Hart, iss on Beta (Clcendon Pres, Oxford, 1982), pp. 105-126, 38 HLA, HART AND LEGAL POSITIVISM threats, or fone treats all aspects ofthe law as variations of commands backed by threats In summary, from Hart’s perspective, the problem with Austin’s approach to aw, and, indeed, with most empirical approaches, was that such approaches are unable to distinguish pure power from institutions and rules accepted by the community, unable to distinguish the orcers of terrorists from a legal system. Hart's alternative view of law is grounded on his views of rules, in particular on a view of the difference between rules and habits. ‘To an ‘nts observer, there may be no way to distinguish someone acting in. ‘s particular way out of habit from her acting the same way in compli= lance with a rule, I may go to the movies every Saturday, but that is not because I think that there is some legal, moral or social conventional rule that states that I should. According to Hart, the difference between these two kinds of regularities of behaviour can be seen through the participants’ attitudes, With habits, the statement of the behaviour is hnothing more than a deseription: | go to the movies every Saturday. With a rule, however, the statement can take on additional roles: as an explanation, a justification, and a basis for criticising deviation. ‘The statement has a normative role.” Many people are not merely “in the habit” of obeying the authorities; they have internalised the rules as reasons for acting in certain ways, and for criticising others when they do not act as required. Farts theory, here as elsewhere, is responding to the idea that when analysing social institutions or social practices, a theory which takes {nto account, or helps to explain, the way participants understand those insttutions or practices is, by that fact alone, significantly better than ‘one which does not do so, Hart described his own work as “an essay int ‘descriptive sociology”, in that he often relied on distinctions between, cconcepis that were rooted in linguistic practice linguistic practice that ‘was, i turn, based on differences in behaviour and attitude. ‘As for seeing law as being orders backed by threats, that view seems to invite the confusion mentioned earlier, between imposed force and accepted norms. A legal system is something different from, and pre- sumably something better than, the rule over a frightened populace by "Law ately i ot the gunmen situation wrt arge:” Har, “The Separation of Law avd Morality" p. 603. Thi ako reals Augustine "Justice remeed, then, what are Tne Kingdoms" Augustine, The City of God Ages the Pega (R. W. Dyoom, tn ‘Cambridge University Pres, Cambri, 1998), book LV, ch 4p. M7 Han, The Cane Law, pe 9-10, 95-38. Fora recent provocative rethinking of he ate of ues, wth a dscsion of implications for legal theory, ace Seot J Shape, ie Diflerene That Rules Make”, in Ancing Law (Brian Biv ed, Clareidom Pres Oxford, IEW), pp. 33-62 Hart, The Catto Lan, SUMMARY OF HARI’S POSITION 39 gangsters. Hart captured the core of this distinction in his discussion of the difference between feeling obliged and having an obligation.** We feel obliged to act in the way ordered by a gunman, because we fear the consequences if we do not act in that way. However, the moment the fear of possible consequences is removed, we see mo reason to act as demanded, Having an obligation under some valid normative system (oshether the rules of a game we are playing, the canons of one’s reli gion, or society’s legal rules) is psychologically more complex. One acts because one believes that one ought to do $0, not because, or not mer because, one fears the consequences of acting in a contrary way.” ‘Against a view that redaced al legal rules to variations on some single type, as (one reading of) Austin’s theory seemed to reduce al legal rules rasted to commands, Hart emphasised the multiplicity of law. He con rules that imposed duties with those that conferred powers (whether power conferred on officials within the legal system, or the delegation (of certain legal powers to citizens, as ean be said to occur through the operation of rules for contracts, wills, trusts, and 0 on), and he con trasted rules that applied directly to citizens (“primary rules”) and rules that governed the operation of the rule-system itself (“secondary rules") The secondary rules include rules of change, rules of adjudication, and cs which empower the nile of recognition.®* Rules of change are the ru people to create new primary rules. This includes not only the authori sation of legislative bodies, but also the empawerment of individuals to Create new rights and duties through contracts, wills, trusts, and the like.”” Rules of adjudication “emposser| | individuals to make authori her, on a particular occasion, a tive determi primary rule has been breke ‘of recognition” will be discussed in the next section.” Hart argued that rations of the question wi 2 Te nature and significance of “rule(s) As Randy Barnett has poined out, Raney E Barnet, The Soacar of Libor: Justice td the Ral of Law (Clatenden Press, Oxord, 198), p19, Joh Locke emphasied 2 ‘Star diatincton, though inthe conten of disesng the comnection between natural andor law: "Certaily,peitive cil arent binding by ther own nature iinany other way thar in virtue ofthe law of nature which orders bed ce to superior and in kerpng of public peace, Ths, without slaw the ues can Perhaps by force and witht aid of ares compel the maltude to obedience, but pat Fem under an sbligaon cy eannat"John Locke, uyron he ane of Nate vor Lien et, Clarenion ress Oxford, 1954), p. IS. Netra awe wl be discussed in chs. Hav, The Compt of La pp 82-86 ah at pp 199, thi. at pp, 95-98. ibd at 97, » Later commentators have pated ou tha Hars was rably mistaken in is further ‘implication that the dsncton between primary and secondary rules matches trewween duty-conferring and powermaposing rales; additinnaly, chee are questo Fegarding whether the rule f recognition is best understood 38a dat-imposing or power-eonkerring rile or neither). See, ea Joneph Raz, The Comet Ll Sem 40 HLL.A, HARE AND LEGAL POSITIVISM there were two necessary and sufficient conditions for the existence of a legal system: (I) that the valid rules of the system “must be generally obeyed”; and (2) that the criteria set forth in the system's rule of recogni cepted as common public standards of offcial tion “must be effectively behaviour by its officials There is no room here to discuss all aspects of Hart's legal theory in etal; instead, I will offer brief discussions of four of the more telling in Hart's work: the rule of recognition, the internal aspect of rules, pen texture” of rules, and the “minimum content of natural law” Hart's views will also come up. by way of contrast, in the discussions of Hans Kelsen (Ch. 4), John Finnis (Ch. 5), Lon Fuller (Ch. 6), and Ronald Dworkin (Ch. 7) THE RULE OF RECOGNITION Ceutral to Hart's theory is the concept of a rule of recognition: a set of criteria by which the officials determine which rulesare, and which rales | are not, part of the legal system. The standards applied are referred to ‘as justifications for the actions ofthe officials, though to some extent ! standards are also ereated by those actions. To explain: sometimes the standards applied are written down in an official text (eg. a written con- stitution) or atthe least ate clearly expressed in criteria that the officials state that they are following (e.g. “to beeome valid law, proposed legsla- tion must be passed by a majority of each House of the Congress and then signed by the President”). Atother times, the standards the officials are following can only be determined, after the fact, by reference to the decisions they have made. A number of ssues have been raised by later commentators regarding therule of recognition, eg. whether its best understood asa duty-impos- ing or power-conferring rule; and whether there can be more than one | | rule of recognition within a given legal system. However, one sheuld focus primarily on what the concept of a rule of recognition indicates, ids for. The rule of recognition expresses, or symbolises, ive. what it sta the basic tenet of legal positivism: that there are conventional criteria, intel, Clarendon Press, Oxford, 1979), p 199. However, fr present parpones ise tremater ol deta agua the general pin, that her ina variety of ype ofa tempt to unalyse al ofthe law in terms ofa single type of rule. ve Harn, The Cnet of Ls, p16 OThetwe best souresorsorh an extended discussion ae probably Nei MacCormick, | HLA Ht 2nd ed, Sanford Unverty Press, Stanord, 2008 and Michael Bales Tia Lege! Pilon: dn Examination (Klawer Acadersic Publishers, Dordreht a0 ph Rav, The thr of aw larendon Press, Oxford, 1979), pp. 95-96 AND OF LAW) a agreed upon by officials, for determining which rules are and which are not part of the legal systems; this in turn points to the separation of the identification of the law from its moral evaluation, and the separation of statements about what the law is from statements about what it should be. (The similarities and differences between Hart’s rule of recognition and Kelsen's “Basic Norm” are discussed in Ch. 4) THE, INTERNAL ASPECT OF RULES (AND OF LAW) The “internal aspect” of rules is central to Hart’s approach to law. It can best be understood within the context of (and it has repercussions for) certain general problems of constructing social theories—a subject touched upon in earlier chapters, and in an earlier section ofthis chapter. There are two related prablems to consider: how must social theories be different from theories in other areas, and to what extent can a social theory be “scientific”.* ‘One problem that comes frora trying to construct a theory ofa social process like law—a problem that does not trouble theories about atomic composition, chemical interaction, photosynthesis and the like—is that law is @ human creation, meant to serve human purposes, and requiring human participation. Because of these facts, understanding any social process, including law, will be different in kind from understanding processes which are purely physical, chemical or biological. “This is the context for analysing Hart's concept ofthe internal aspect of rules. The idea is that one cannot understand a social system unless fone understands how the people who created the system or who partici- pate in the system perceive it. ‘This “hermeneutic” approach—that is, tiving priority to trying o understand how other people perceive their Situation —is always in tension with those who want social theory to be “The “scientific” approach to social theory would rely only on data that was “objective”, data on which different observers could always agree The “scientific” approac’ to legal thcory might be exemplified in various theorists’ writings: for example, Christopher Columbus Langdells view of legal theory asthe search fo the system of basic principles within the and the Americar. legal realists (to some extent reacting against » See Hart The Compt of La, pp 85-58, 829 Sorac ote themes inthis ton are explored mt grate length in Bis "HLA. Hart and the Hermeneutic Turn in Legal Theor; sce also Thomas Morawetz, "Law 3 perience: Theory aod the nical Axpect of Law”, 52 SMU Law Rec 27 (199) Asearie note, Harts hermeneutic approach derived primarily fran the works of Max Weber and Peter Winch > See William Twining, art sal andthe Rett Moment (University of Mabon Press, Norman, Oklahoma, 1985), pp. 10H Langdell’s view)2” emphasising 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 AIf Ross, who (according to Hart) “claimed that the only method of representation of the law fit to figure in a modern rational science of aw 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 fall understanding of lw.” Law isa social institution set up to achieve certain human purposes, and also to give guidance to citizens. One can only understand purpesive behavior and normative (rule-fllowing) behaviour if one leaves ene's spectator’s perspective and tries to understand the perceptions of the pavticipants in the system, that is, the perceptions of the people who are following the rules, and who perceive themselves as doing sc. In Hart's terms, to understand “any form of normative social structure ‘the methodology of the empirical sciences is useless; what is needed isa ‘governed behav. ‘hermeneutic’ method which involves portraying rul ‘our as it appears to its participants The attack on a purely scientific approach can be seen in Hart's diginction between habitual behaviour and rule-following, menticned earlier" As noted, Hart emphasised the difference between rules and habits, a difference that resided primarily in the participants’ pereep- tioas of what they were doing, and in their reactions to and attitudes, towards the actions about them. When an action was done “asa rule”, rather than “as a habit", the rule is given asa justification of the action, land the rule is also the basis for any criticisms (including selFcritic's} forany divergence from the prescribed actions." By contrast, we tend (0 have no justifications at hand (and sometimes we are lacking for expla nations of any kind) for our habits, and we certainly do not criticise or expect criticisms when there are deviations from those habits. Because Mart Evy in aipradenc and Pop, p13. Scandinavian legal reais wil be incised, ify Ch » Toran excetlem dicussion of the problems of mthod reo Hans works ace Perry, erpreta ry in jurigprudenee, with mand Methodology in arte atet Legal Theory © Har, Asan Jira Sitar to scietie and Ps op 1S who obeyed the law anerely out fear ‘eaetome ol lok the same a semeane who obeyed the Iw because he oh {eleva thatthe legal tem as legate, hough «egal positive wth that ost i description aa moral evaluation) might be foecbsed sion asa bai for rejecting purely external viewpoint he “enero and “vol ‘Cormick, al Reson and age 02; MacCormik, IL-4 Har pp Fo referring that eo for the suggestion that une needs to ding pecs of the internal pint of vew", se Net 7 (Clatendon Pest, Oxford, 1978), pp 288 {Np OF Law) 8 THE: INTERNAL ASPECT OF RUL a scientific, purely “external”, approach to law would conflate habitual actions and rule-llowing, according to Hart it would inevitably miss some matters which area the essence of lv However, to say that abe is going (o take the perspective of a par ticipant in the social practice i at besa first step. Afterall, most social practices havea large number of participants, all of whom do not share the same view of, or attitude tawards, the practice. One prominent legal theorist, John Finns (who is discussed at greater length in Ch. 5) argues that the perspective chosen should be that of a (hypothetical practically reasonable person, who applics appropriate moral reasoning to conclude {iftruc) thatthe legal system ereates binding (prima facie) moral obliga- tions.” A second prominext legal theorist, Ronald Dworkin the subject Of Ch. 7), argues that one should theorise as fone were a participant in the social practice, offering an interpretation of that practice that makes it the (moraly) best practice it can be." Both of these perspectives are, from Hart’ perspective, to extreme: he wants legal theory that would ations o moral commitments (unlike Finis! approach), while remaining a descriptive theory ofthe practice rather than a participation in ie (anlike Dworkin’s approach) Hart was trying to maiatain a difficult middle position. He argued that a legal theory should be constructed around the perspective of someone who accepted the legal system, but the theory itself (or, 10 put the matter differently, the theorist herself) need not, and should hot, endorse the system (as one which is generally just or which creates binding moral obligations. In other words, the theory simultane- ously: (1) attempts 10 take into account the participants perspective, and (2) manages to choose among possible participants’ perspectives Without having to make moral judgments, while (3) keeping sufficient distance from the participants perspective allow for moral criticism Of the whole system/enterprse, The danger is of Hart’s position sliding towards an Austin-like external observers theory on one side, and a position closer to Finns’ er Dworkin’s on the other. “To put the mattera different way, the question is how to take seriously the need to accept the perspective of a participant in a practice while be free from moral ev © See Finis, Natural Las and ata! Rights pp. 3-18 4 Scegencrally Dworkin, La Eni pp 43-113 © See Har, "“Inteoniuction py. B12, Hart, “Postcrip p. 240-24 ‘Comeau n Catone Leal Psp (Gas (Onion, 1987), p. 39. As alter of srt chronology, Hart's most important works swore writen pret the wore of Finis and Dworkin howeve, i stil accurate to Sy that Has postin sa cents postion compared othe postions Hart rej bt Finis and Dworkin werelatr to defend Ananalysissimilero what flows, though in greater detail was offered in H, Harner HU, “HLLAA. Harts Hermeacutic Postivisrn: On Some Nethodlogical Diticales in The Concha", 3 Canaan Jura of Lae and Jarrad 18 (January 1990), HLA. Har, “4 HLA, HART AND LEGAL POSITIVIS still maintaining a sufficient distance to be able to eriticise the practice {and the participants). In social theory (or perhaps, more accurately "Social sciences meta-theory”), this has led o an ongoing debate regar: ing whether an attempt to “explain each culture or society in its ow terms... rules out an account which shows them up as wrong, confused for deluded,” Someone might argue: if you claim to understand the perspective of the believing participant ofa particular practice, but you think the practice is irrational and cruel, then you have not really under stood or properly incorporated the perspective of the believer, because that is not how it looks to her. ** An additional complicat implications are hard to tease out, is that in the social sciences one mest 1) the evaluation qe 1, one whose ‘consider the role of an internal point of view both i and in (2) the gathering of the data to be evaluated Thisadditional point is unclear in its implications because it ties into the debate on what it would mean to “gather evidence” for a general theory ind ashat kind of evidence one would want, a debate alluded 10 n this book (in Ch. 2) (ta defensible middle position between external poirts ‘of view and fully committed internal points of view was articulated by Joseph Raz, in a position called “statements from a point of view” ‘detached normative statements”. These are statements which accept particular normative position for the purpose of making «limited claim, bat without endorsing that normative position, Thus, one can tell a veg ctarian friend at a restaurant, “given your belies, you should not ord: that dish", even though the speaker is noc a vegetarian. In a similar way, [IJegal scholars—and this includes ordinary practising lawyers—ean use normative language when describing the law and make legal stat "ments without thereby endorsing the laws moral authority.” A lawyer can sty to a client: if you accept the law as valid (as imposing moral Dbligations), then you should do X.or should avoid doing ¥. Whether Harts analysis, with or without the help of Raz’s addition, ean maintain its precarious middle position isa difficult and important question. A related problem for legal positivism (only partly connected wih internal aspects") is whether its in fact possible to have a legal theory which is “purely descriptive” or, if “descriptive” is too strong a term, at least morally ncutral, While legal positivism has always insisted that it of law © Charles “Toe, Philowply and te Haman Seiwes (Cambie Univesity Pres ‘rhe apron wl il retin he sy to eritcise tha hich being ‘expained «© The postion, desved fom Peter Winel aa Jurgen Ha Hill "HLA. Harts HermeneiePostivim’ tL617 © Mill SHIA. Hart Hermeneutic Pst” 125125 Ra. The dry of Lap. 13-7 ee alto Har, “Teedaction, pp. % Ran Tabor of Lat, 138 OPEN TEXTURE 45 ‘aims to describe “law asitis" rather than “lawas tought to be”, contempo rary legal positivists have noted that the construction of theory inevitably involves clementsofevahiation and selection, andisin that sense not purely “adescriptive". However, legal postivists argue that the forms of selection and evaluation involvedgo to judgments of “importance” and not to moral evaluation.®= The alternative argument, associated with Stephen Perry and Ronald Dworkin, isthat legal theory incluctably involves moral evalu- ation, and the only question is whether the choices are made on the surface {and argued for) or are made tacitly (and without express justification). OPEN TURE The problem of gaps inthe law has been known fora long time. Aristotle “When the law speaks universally, then, and a case arises on it which is not covered by the universal statement, then itis ight, whem the legislator fils us and has erred by over simplicity, to correct the omission-—to say what the legis ‘id had he been present, and would have put int his different ways in which legal rules might fail to cover (unusual) factual situations that arise. Hart introduced the idea of “open texture” to discuss one such way.® Ifthe legislators introduce a rale to deal with a particular set of circumstances, how isa judge to apply the rule to an entirely different type of situation? Hart’s example is the rule, “No vehicles in the park”, introduced to remove automobiles from the area, but then asking whether that rule should apply to motorcycles ‘or roller skates or other objects which may or may not be “vehicles”. Hart argued that with all general rues, there will be a “core of certainty” central cases where the application is clear—and a “penumbra of doubt’, where the application ofthe rule is uncertain.™ for, 2001, Theory aw tnd Intrprtation(A. Marte ed, Clarendon Press, Oxford 1995), pp. 97-133 Ronald Dworkin work dice! at engi in Ch, * Arie, Nomachvon Fs, Book V, I 1137, i The Compe Wo Barnes ed, Princeton University Press, Princeton, 1984), v2 p. 1796, Hart, TheConopto Lan pp. 123-1, Harts concepe wat elated o and derived from an dea in Friedrich Watsons plulesphy o language Idicussthe connections dlifereneesin greater detail in Brian Bi, Ln, Language, and Lap! Deerinasy (Oxford Univerty Pres, Oxford, 199), pp. 7-23 Har, Th Cnt of Lap 128, The ea ad image ofa core of ertaitysurounded by a penumbra of doubt might trace back either to the American judge and legal ‘commtentator Oliver Wendel Holmes, se, «Oliver Wendell Moles, J, Te of vs a 4 HLA. MART AND LEGAL POSITIVISM Partofthe arguments that eslative purpose is incomplete or impre= c: the legislators have not considered all possible situations, so that ive intent even clearly known, will wot answer all posible prob- Jems in applying rules, Another part ofthe argument is that language is imprecise: there will be many occasions when it will be unce-tain whether a general term (eg, “wehicle") applies to the particular abject in question (e.g roller skates). From these premises, Hart concluded that judges inevitably mus use thie discretion to make new law, on the occasions where the legal rales have “open texture”, He also argued that judicial lawmaking a: the margins was a good thing, giving needed flexibility to the application oflegal res? Upon reflection, itis not a surprising conclusion that language is generally clear but there are occasions when itis not. How to obey or comply with an order or requests usually obvious, but there are times ‘when circumstances make the matter uncertain. A directive that may seem straightforward in one set of circumstances may seem confused oF absurd when applied after a significant change of circumstances. There are aspects ofthe “open texture” debate that derive from the nature of language, aspects that derive from the nature of ules and rule-folloring, a aspects that derive from suggestions about the best way to consiruct ystem for applying rules Hart's discussion derives from concerns about the ability of rules to hide behaviour and also about the need for, and advantages of, uc law making a the margins. The same set of considerations raises cher problems that Hart did not consider in comparable length: for exarnple, problems about the nature of legsative intention and how it can be Alicovered or derived, and problems about when itis legitimate for a Jide to interpreta rule contrary tothe rule's clear meaning or contrary {o legislative intentions. For a variety of reasons, English jurisprudence {atleast atthe time Hart was writing) was not as focused on the legiti- inicy of judicial action as American jurisprudence has been in recent decades.” inmany ways, Harts discussion of “open texture” was preliminary: (Gammon Lae (M.D. Home ed, Lite Brown, Boston, 1963), p. 11; Thomas C. Grey, “Molecular Motions: The Halsin Judge in Theory and Practice", 37 Wilm @ ary Law Reser 19 at $4 and m4 (1003); oto the British plieuopher Berrand Ruselh, sce Bertrand. Russell, "Vaguenest, in Called Paper of Beran. hes! (Sted e., Unwin Hyman, Landon, 1988), vl 9. pp. 3, © Hart The Comp of Lac pp. 129-131 See Bix, Ls, Language ed Leal Darina, pp. 22-25 2 mong the factor that erate tis more intense focus in the US. i the ability aad willingness of American courts to validate lrgialation (ander Federal and state com Sitional provision), the controversial nature of some of those decisions, and the tension Between such deciions and the arn democratic ethos in American poltical ‘Sou “THE MINMUM CONTENT OF NATURAL LAW 7 there is much work that still must be done in disentangling arguments based on the nature of ianguage and arguments based on the nature of rules, and Hart is probably too quick to conclude immediately from the existence of “open texture” that judges do (or should) have discretion in deciding hard cases.” However, Hart’s primary purpose in putting forward the notion of “cpen texture” was to counter arguments from two directions. First, Hart was responding to the American legal realist,"* some of whom had argued that judicial legislation showed that legal rules never or rarely determined the outcome in legal cases, and that inv understanding de law Secondly rules were of litle or noimportan Hart was responding © the natural law theorists," who argued that the way judges decided dificult questions showed that there was, con- tary to the legal positviss, no conceptual separation between law and morality.” To the point that rules by themselves do not always deter results of eases, Hart's response was that this is sometimes true (and is ‘caused by “open texture"), but that this occurs in only a relatively small umber of cases. To the argument that judicial legislation shows the conceptual connection petween law and morality, Hart responded that this way of seeing the matter tended to cloud, not clarify, our under- standing of law-— judges interstitial legislation may be based in part on moral standards, but it does not follow that those standards are then. best seen as having been “in the legal rules” all along" Additionally, much judicial legislaten is based on forwarding the purposes of leg- islation: purposes which can as casily be morally neutral or evil as ne the OF NATURAL LAW ‘THE MINDAUM CONTE Some commentators have made a great deal of Hart’s discussion of “the minimum content of natural law” seeing it as a great conces- sion that undermines all that Haart had (vied to claim earlier regarding the separation of law and morality. This view, I would argue, is a clear % ‘These mattersaredscused in greater detain Bin, ae, Langan apl Determinay, pp. 7-10, 17-35. a, The Cnc of La, 186-147, Arnica lol realism is diseased in Ch. yal natural lw theory isdncussed in Ch, 5; on Fler natural law theory, vant othe erie af Hart egal posisvim, discussed in Ch 6, 1 Sco, eg Hart, “Postvam and the Separation of Law and Morals’, pp. 606-615; Anthony J Seok, “Finding Wittgenstein atthe Core ofthe Rale of Recogaiio”, 52 SSMU Las Resi 3 at 84-20 (1998). See Hart, “Postvsm andthe Separation of Law and Morals" p. 614-615. ° Har, The Cnc of Lae, p>. 195° 200, 48 HLA, HARD AND LEGAL POSIFIVISM misunderstanding of Hart's discussion, though it may be that a certain lack of clarity in the text invites the misreading "The text occurs in the context of a general discussion of the ways th Jaw and morality can be said to overlap (for example, the way that ca ventional moral beliefs obviously affect the way that the law develops, !and the fact that ideas about hovr law and society ought to effect how statutes, in particular, ambiguous statutes, are interpreted) in order show what isnot claimed by the assertion that there is no necessary con- (or, to put the point a different wey, nection between law and moralit what is not excluded by the claim). The “mininnum content of natural Taw’ is just one more exploration along this borderline, a border that Hart believes separates legal positivism from natural law theory. “The particular argument is that there ate certain contingent facts ofthe human situation in the present time (and all known history): that we are all mortal and vulnerable, that resources are limited, and that we are all, facts are contingent, in ddeperdent to some extent on other people. These ‘hac tis not imposible (however unlikely it may be) that future scientiie developments might change these [act for example, some series of discon cries might make us physically invulnerable). However, given these fac, ‘certain consequences are likely to fallow. Among these, Hart speculate, is that any legal or moral” system that die not offer certain minimal pro- tections (against murder, serious assault and theft) o atleast a significant ‘minority of the population would not —could not—survive for very long This is not a conceptual point, merely a prediction, and a reasox- able one. Even if one were t0 take it as a concession to the natural Law theorist, itis a trivial one. This “minimum content” test does not reflect the tstal lines of disagreement between legal positivists and natural law theorists. Advocates of natural law theory argue for a moral test for legal validity that sets far higher standards, not just the Hobbesian ‘moral minimurn that Hart discussed." Most natural law theorists would want the right to declare as “not law” legal systems, or certain rules of legal systems, that would otherwise easily pass the minimal standards of Heart's discussion INGLISIVE. VERSUS EXCLUSIVE LEGAL POSITIVISM. In coatemporary English-language legal positivism, much recent discus: sion has been on an internal debate between “inclusive legal postivisn” iat pp. 208-212, © Hee Hart meant moral” in the sense of he conventional merality which it accepted within ace (ora sub-eulre restate actions oF is members and enforced I social santos of aren Kc # Hast, "The Separation of Law and Moraliy” p. 628 INGLUSIVE VERSUS PXGLUSIVE LEGAL. POSTFTVISM 49 (also sometimes called “soft” or “incorporationist” legal positivism) and ‘exclusive legal positivism” (also known as “hard” legal positivism). The debate between the two camps involves a difference in interpreting or claborating one central point oflegal positivism: that there is no necessary ‘or “conceptual” connection between law and morality. Exclusive legal positivism interprets or elaborates this assertion to mean that moral criteria can be neither sufficient conditions nor neces sary conditions for the legal status ofa norm. Indifferent terms: exclusive legal positivism states that “the existence and content of every law is fully determined by social sources." Inclusive legal pusitivisus, which has a number of prominent advocates,” interprets the separation of law and morality differently, arguing that while there is no necessary moral content to a legal rule (or a legal system), a particular legal system may, by conventional rule, make moral criteria necessary or sufficient for validity in that system. The strongest argument for inclusive legal positivism seems (0 be i fit with the way both legal officials and legal texts talk about the law. Morality seems to be a sufiient ground for the legal status of a norm in many common law cases (and decisions in which legal principles play a large role”), where a legal norm is justified only or primarily on the basis that morality requires it.”""The more familiar example for inclusive legal positivism is not about suffeient grounds for legal validity, but neces sary grounds: when constitution-based judicial review of legislation (cg in the United States) requires or authorises the invalidation of legis tion that runs afoul of moral standards codified in the constitution (eg regarding equality, due process, or humane punishment), this appears to make moral merit a necessary, but not sufficient, bass for legal validity ‘Additionally, the inclusive view allows theorists to accept many of Dworkin’ criticisms of legal positivism (sce Ch. 7) without abandoning Raz, The Autor of Lap 46, > ly advocates of nla legal pov inlade Philip Soper, “Legal Theory and he Obligation ofa Judge. The Hart/ Dworkin Dgpate’, 75 Nckgon Law Resi 13 {1927}, Jales Coleman, “Negative and Pot Pastis”, L Juul of ea Stes 139 (18), reprinted in Cleman, Mark, Maras and te a (Cambridge University Press, Cambrtige, 18H}, pp 8-27 David Lyons, ths ed te Rae of Law Carbide University Pres, Cambrige, 1984); MacCormich, Lael Reasoning and La They Hart later seemed o adopt or alfirm inclusive legal pont a Ue best reading his own posiion, See Har, “Postscript, pp 250-254 Important ater works Wi. Walechow nse Lgl Pots (Clarendon Pres Oxford, 194) ad Jules Goleman, The Paster 9 Praile(Oxlord University Press, Oxford 201), Compare onald Dork, Uaking Rights Seve Harvard University Press, Cambridge Mame 1977), pp. 1S, ex aivo Tony Honore, “Fae Necesary Connection Between Law and Morality”, 22 ‘Og ourna f Lapel Stade 489 at 494 (2002) ("T]he pone law of sities with legal syncs makes aguments addressed to citcal morality admissible inthe {expectation and application of law 50 LILA: HARP AND LEGAL POSITTVISM what these same theorists consider the core tenets of legal positivisrs law's grounding in social facts and conventions). Inclusive legal positiv- ism accepts that moral terms can he part of the necessary oF suficier criteria for legal validity in a legal system, but insists that the use moral criteria is contingent and derived from the choices or aetions ef particalar legal officials rather than part of the nature of law (and thus presert in all legal systems) he most prominent argument for exclusive legal positivism is offered py Joseph Rav, and is based on an asserted relationship between law ard authority. Re approach to law is not easily summarised in a few ser: tences(or even a few dozen pages), but a short outline will be attemptec First, Raz offers the “Social thesis” as the core of legal positivism: that what is law and what is not are matters of social fact (Raz favours sirong version of the social thesis that he clubs the “sources thesis”, that the existence and content of every law are fully determined by social sourers).”" This restatement of the legal positivist’s separation bewweea law and morality is tied to, and supported by, a distinction between ing to a decision, and th wpplyin. deliberating as part of the process of execution of the decision once made,”* When judges are merely decisions already reached (by the legislature or by prior court de they -e applying existing law (determining what the law i); when judges consider moral factors in ereating a new rule, or in considering possibl: changes to an existing rule, that is determining what the law should b This view takes no position on whether iti a good thing or a bad thing that des legislate, or whether they should do so more often or les often than they eurrently do. ‘The point rather is that itis both analytically cleares, and in line with the way we usually think and talk about the la to maintain a distinction between applying the law and making new law, between execution and deliberation. This approach allows Raz say that moral reasoning has no part in stating “What the kaw is”, but it btten does (and probably should) have a part in saying how judges should decide cases “according to law Secondly, itis im the mature of kaw that it (the legal system) claim * See az, Th Athy of Lae, 3 Src Rac, Pr nt Pb Doma, pp. 190-192. While sme comment 1 iy in the inal”, Ra eb ot ene nd similar views as being about certainty ad pre Rar himell wee Rar tan amly that aw souk be sec mahi i speaks. dat pp 18-14 Ser ar, *Postema on Law's Autonomy and Publi Practical Reasons” pp. 4-6: Rae ot 0 unt that it shouldbe over ent by way ofan that levi, offen tacily that an existing turned Obviously, when judges ede expmesy hat he legal rule 50 jst INCLUSIVE VERSUS E {CLUSIVE LEGAL, POSITIVISM 51 legitimate authority,” This means that legal rules purport to be “exclu- sionary reasons”; “reasons to exclude a consideration from being the ‘ground for af ] decisica”.”” Raz’s analysis ties together law, authority land practical reasoning. For Raz, the connection between authority land practical reasoning is a general one: authorities and authoritative reasons affect our moral deliberations; where there isan authority (which ‘we recognise as such), our decision is based at least in part on what the authority (whether that authority is the law, a sacred text, a religious leader, an army commander, ete) states we should do; we incorporate theauibirity’s weighing uf the rclevant factors rather than simply weigh ing all the relevant considerations for ourselves, In Raz's terms: “The authority’ directives become our reasons. While the acceptance of the authority is based on belef that ts directives are wellounded in reason, they are understood to yield the benefits they are meant to bring only it we do rely ® rather than on our own independent judgment ofthe merits of each ‘ease to which they apply For Raz, those subject o an authority “can benefit by its decisions only if they can establish their existence and content in ways which do not depend on raising the very same issues which the authority is there t0 settle” In the contex: of law, this means that with legal rules, which sions on matters on which citizens are meant to make authoritative de ‘would otherwise be subject to various moral (and prudential) reasons for action, we must be able to ascertain their content without recourse 10 farther moral evaluaticn, Following this analysis, inclusive legal positiv. {sm must fil itis argued, because itis inconsistent with a core aspect of law, the legal system's purporting to be a justified practical authority.” ic should be overturned, the oe of morality in reaching this legal decison i elearer Seeahad arp 16 See Ra, Bis inh ble Doin, pp 14-2 Joveph Rar, “Facing Up" 62 Sour Cali Law Rew 1159 at 11581989), Joseph Rar, Practical Rezun and Norm (2c, Princeton University Pres, Preto, 90), 198 The phrase "helene they are meant to bing” telrs tothe argument atone veatsa source asouhortatve, in allwing the directives of that source,ones ‘ore ikely oe hing righ than ie deliberated and decided for onesell Se ark voew of authoriy i controversial; for cttiiams, see, eg Stephen Lakes Perspectives on Authoriy” in Aunty Raz ed, New York Univers Pres, New ‘York 1980), pp. 208-27, Rovald Dworkin, “Thity Years On, 114 Hernand Law Revie 1699 af 1671-1676(2002) » Rar, Eth inthe Pie Drain 219. 1 Another argament chat hs ber offered fr exclusive legal postvam derives from Claim about the nature of ules, Scot Shapiro hasemphasied that it isin the nae of ‘ales including rule tha they make diflernce in our practical reasoning, and hat elusive rules of reeagnition woul ul to make a diflerence in this ways as they sroult merely point us towards moral evaluations already appable to our choices Seon. Shapieo, "On Has Way Out" 4 Lege Try 4091990 52 HLA. HAKP AND LEGAL FOSIIIVISM the debate between inclusive and exclusive legal positivism remains hotly disputed, as does the argument over whether ether offers. position fully defensible against contemporary critics of legal positivist." OTHER APPROACHES Neil MacCormick has developd an institutional theory of law which ‘emphasises the social-fact basis of law. Though this theory was initially putlorward as. form oflegal positivism, the author characterises its most teeent elaboration as “post-positivism”, on the basis that “[e}xtremes of injustice are incompatible with law." Tom Campbell, through his theory of “ethical positivism”, has argued that a strong separation thesis (like Raz’s sources thesis) should be adopted, not as a philosophical analysis of the nature of law, of the way law always is, but rather as a prescription for how judicial decisions specifically and governments more generally ought to operat In his book Norm and Nature Roger Shiner argued that legal positiv ism inevitably develops, as it becomes more sophisticated and responds to criticisms, towards positions close to those of natural law theory (be also argued that, in turn, natural law theory in its more soph sti cated forms, develops in the direction of legal positivism). ‘The basis fof that argument ean be seen in outline from issues discussed above For example, an empirically-based theory of law like John Austin’s (in Shiner's terminology, an example of “simple positivism”) has a number ‘of cbvious defects, which appear to be remedied in H.L.A. Harts theory (in Shiner's terms, an example of “sophisticated positivism”) ‘with its use ofan “internal point of view”. However, as discussed earlier wwe are already approaching natural law theory, in that the line seems quite thin between viewing law through the perspective of citizens whe accept the law as ereating (prima facie moral) obligations (Hart's proposed “internal point of view"), and constructing one’s theary Around the conditions when law in fact imposes valid (prima facie) moral obligations Fora detailed discussion ofthe debates within loyal posi, and method Jules Coleman el Hers sept (Oxtord University Press, Oxford, 20 Seale, Dworkin," Thiety Yeare On faking sharp crtcems of bot nce sed s:lusve legal pois) In Brian Bix, "Paring the Boundaries: Taclaive Legal Pos ah Dehate”, 1) Canedion onal of Lan Fir 17 (1909) 1 goes nner skeptical overview occ ofthese debates [Nel acCorick, tiwions of La An Buyin Leal Thay (Oxford University Pas, Term D- Campbell, The Ligal Theory of Ec Poitisim (Aldershot, Dartenth © Rage Shines, Norm and Nee (Clare OTHER APPROACHES, 53 In areview of Norm and Nature Frederick Schauer agreed with Shiner's basic analysis, but held that Shiner’s view of “sophisticated legal posiiv ism” was not the inevitable path that this approach to law needs to take ‘Schauer offered as an alternative an empirical, non-hermeneutic version ‘of legal positivism, arguing that in relation to the Hartian version of legal positivism discussed above, his alternative was as tenable, but without the dangers of sliding into natural law theory. In other words, Schauer wa offering a kind of “return to Austin”. Schauer's basic argument is that lone can construct a version of the “internal pointof view”, where citizens vw, and officials’ enforcement of the Lvs factions in conformity with the areallexplained adequately on prudential terms (forexample, the citizens, fearing legal sanctions, and the officials fearing reprimand or removal from office, and hoping or appointment 10 higher office)” The point of this transformed “interaal point of view” is that the aspect of “normativ ity” (the fact that citizers or officials accept the law as creating moral obli- gations, as offering (addtional) reasons toactin compliance with what the law prescribes) is removed, and that itis that aspect of sophisticated legal positivism that sends it sliding towards natural law theory. We are then returned to Hart (and his many and various followers) todiscover why a theory based on such a “bad man’s view ofthe law"? is considered inadequa‘e. Hart's answer would appear to be: because it fails to take into account the perspective of people who accept the law, Jose who fallow its prescriptions for non-prudential reasons.” One argument is that this isthe “central” or “focal” sense of law, which any should try co explain, while obeying the law for fear or favour ‘Schauer’s response is that esser” of “attenuated” sense of a is who believe that law imposes Focusing one’s theary on citizens or of moral obligations is dubious when theorisis themselves are far from tunited on law's moral satus, with a number of legal positivist ike Joseph Raz arguing strongly against the proposition that law creates prima facie moral obligations (see Ch. 16). The better approach, Schauer argues, © Frederick Shaver, “Critkal Notice” (reviewing R. Shiver, Candia Jura of Pept 495 (1994 ce Frederick Schauer, "Potvin TIH0 fy Clarendon Press, Oxkrd, 188 Sthiuer "Critical Nove’, pp 00-5 ‘id. t pp. 498-50 © Sce Oliver Wendell Hole, "The Path ofthe Law”, 10 Haren Law Review 457 a #60461 (1897 "Hare was nt ently cle on whether pr Foran simeral pois ovine Hart, Thr Cnt Lan, p 20h within an internal view th eeause of cealeulutions ofl ter terest) snpp.0- 18. Onecould also argue thatthowe who rs }consitutea majorty oratleastasig his however, van empirical aim, with ie evidence ick nd hi’ Andi La (BB Pvalabecthern supporto in apposition, See Schauer, "Critical Notice". 502 54 HLeA, HART AND LEGAL POSTTIVISM js to leave the question completely open at the definitional level, and argue the issue out in the open.®® As against the conventional view that Hart's use ofa (quasi-Jhermencutie approach in legal theory constituted a significant advance in legal positivism in particular and legal theo-y in 's analysis may provide a radical challenge general, Sch Suggested Further Reading AUSTIN John Austin, Lectures om Jerisprudence or The Philsoply of the Positive Law (th ed. R. Campbell ed, John Murray, London, 1879) (Thoemme Press rprin Bristol, 2002) The Prone of Jurisprudence Determined (W. EB. Rumble ed, Ci University Press, Cambridge, 1993) Brian Bix, “John Austin’, in Edward N, Zalta (ed), Stanford Eneycopesia of Phloopy, http: /plato stanford eda fenties/Austin-foh (2005) W.L. Morison, Jahn ustin (Stanford University Press, Stanford, 1962) sig Michacl Bayles, Harts Lega! Philouply: dn Examination (Kluwer Academis Publishers, Dordrecht, 199) PMS. Hacker and Joseph Raz eds, Lau, Moray, and Secey: Esaysin Howar of HLA. Hart (Clarendon Press, Oxford, 1977 HILA. Hart, The Cincpt of Law (nd ed, B.A. Bulloch and J. Raz eds Clarendon Press, Oxford, 1994) (the sccond edition includes a "Postscr pt ‘which is primarily a reply to Ronald Dworkin). says in Jurisprudence and Piltophy (Clarendon Press, Oxford, 1983) Positivism and the Separation of Law and Moral”, 71 Harsand awe Rew 503 (19 Lacey, Nicola, A Lif of HLL.A. Hart (Oxford University Press, Oxford, 200%) Neil MacCormick, Hid, Hart (2nd ed, Stanford University Press, Stand LEGAL, POSTTIVISM Brice ing “Lega Positives on Baha Guide te Philp of Las snd By Theory W. A: Edmnundson and M. P. Golding ed, Blackwell, Oxford, 2095 po. 20-49, Schaver, “Critical Notice” p. 503; Schauer, “Postvism Through Thick and Thin ene INCLUSIVE VERSUS EXCLUSIVE LUGAL ROSITIVISM 55 Jules L. Coleman and Bi Philosophy of Law end Le pp. 241-260 Robert P. George ed., Tht Autonomy of Law: Fay on Leal Postion (Clarendon ress, Oxford, 1996) includes essays by Joseph Raz, Neil MacCormick, John Finnis, Frederick Schaver, ules Coleman, and Philip Soper) Leslie Green, “Legal Positivism’, in E. N. Zalta ed, Staaf Fae Philp, bxep:// plato stanford edu/entries/legal-positivismn/ (2003) Matthew Kramer, Iu Dee of Lge! Pestiism: Late With Trimmings (Ontoed University Press, Oxford, 1998) David Tyons, ‘Morel Ayweet of Legal ‘Theory (Cambridge Universiy Pres, ‘Cambridge, 1995) Joseph Raz, The Aulonity of Law (Clarendon Press, Oxford, 1979). Ethics i he Plc Domain Clarendon Press, Oxford, 1994) Leiter, “Legal Positivism”, in A Campanian tthe Theory (D, Patterson ed, Blackwell, Oxford, 1996) ia of INCLUSIVE VERSUS EXCLUSIVE LEGAL. POSITIVISM Jules Coleman ed, Hart's Posrpt: Essays om the Pastript to the Concept of La (Oxford University Press, Oxford, 2001) (contributors include Joseph Raz, Jules Coleman, Siepher Perry and Jeremy Waldron) Kenneth Einar Himma, “Inclusive Legal Positivism", in The Oxfird Handbook of Sursprudence and Philsoply of Law (J. Coleman and S. Shapiro eds,, Oxford University Press, Oxiord, 2002), pp. 125-165. Andrei Marmor, “Exclusive Legal Positivism,” in The Oxford Handbook of TJartsprudece and Philosphy of Law (J. Coleman and S. Shapiro eds,, Oxford University Press, Oxford, 2002), pp. 104-124