Appunti Hart, Dworkin e Raz secondo modulo philosophy of law

Herbert Hart: The concept of law

The concept of law

The concept of law was written in 1961. The 2nd edition in 1994 is different from the first one because in this year he wrote a postscript that was attached to it. It is not complete though. The 3rd edition in 2012 is a masterpiece because it is written in a wonderful English and it is very clear.

Hart is a legal positivist, probably a normativist, similar to Kelsen. Anglophone legal theorists don’t know Kelsen but they know Hart, so they consider the book as the foundation of the legal culture both in England and America. It deals with the problem of the concept of law, and Hart’s answer to the question becomes a reference for all legal theorists. Everything in English legal theory is an elaboration of Hart’s theory, elaboration, discussion, or critique of his view.

Chapter 1: What is law?

Law is a matter of bindingness and rules. Is law obligatory? How? Possible answers: Then morality can be divided into objective morality and social morality (morality in terms of what in the society we consider to be just).

This view causes problems: If we think that morality is binding, we consider law and morality/justice as the same thing. Of course, law has something to deal with justice and morality, but it is not the same thing, so we’re not explaining what is the concept of law. On the other hand, when it comes to force, the problem is that force is something completely factual and not normative; it doesn’t give the idea of bindingness, but the idea of coercion and fear.

Another element that makes law obligatory can be the rule. But what are rules? With rules, people must behave in a certain way; they are about what people must do, how they ought to behave. A rule is something that we need to understand to do the right thing. There’s the need to follow the rules even when there aren’t consequences, so they are independent from facts. Legal science is a matter of norms, so to understand the concept of law it’s necessary to understand what rules are. Law is a domain of norms.

Can we define law? Law is a sort of X that has peculiar features of Y. What kind of X is not important. Problem a sort of what? Different answers. Hart in chapter 1 doesn’t want to find a definition of law but he wants to define a central set of elements that can be relevant to answer the question “what is the concept of law?”

In doing this, Hart will address Austin’s view as a possible answer. Hart analyses the theory by Austin and finds it defective. So in chapters 2 and 3 of the book, he will reply to Austin’s theory and destroy it, after considering it in a deep way. In chapters 5, 6, and 7 he will reveal his solution.

Chapter 2, 3, 4: Orders, commands

Hart explains the idea and the methods of Austin by addressing the notion of commands. Austin thinks that legal norms are just commands, but what are commands? A command is the use of a prescriptive language, but Hart notes that the use of a prescriptive language is not sufficient because you can use prescriptive language in very different ways. There is a typical situation in which prescriptive language is particularly appropriate when someone threatens you to make you do something; the important part is not the prescriptive language but the threaten gunman situation: the authority threatens and does something bad if you don’t comply.

In this situation, as the gunman threatens you and shoots if you don’t comply. Gunman situation and Austin’s view of law seem the same but it is not. He is adding features to the simple model of gunman situation so we can reproduce for us the characteristics of law:

• Legal control is general (generality)
• Standing orders: a legal system the order stands; the order stands even if the gunman goes away.
• General habit of obedience: people must develop a habit to obey to law; fear is internalized and this pushes people to obey.
• Supreme power: not a gunman among many, but The gunman.

Austin already knew these features in his view even if he didn’t explain them. These features are part of Austin’s theory. He adds this feature because he wanted to be taken seriously in a moment in which Austin had a lot of fame, so he shows how good Austin was as a jurist, he tries to understand his view, but then Hart attacks his model, showing his problems. Also, he thinks that not all norms are orders. This is shown by problems of content: law doesn’t simply forbid and gives threats, but it makes things possible; it gives citizens the power to do something.

Hart imagines the possible reply to the answer of Austin about this:

• Nullity as a sanction: usually if you don’t follow the procedures/forms/conditions, the thing that seems to give you power is actually not valid and there is nullity as a sanction if you don’t follow the procedures given by the law, you don’t get the effect. But this doesn’t work, because when there is a sanction (in criminal law) the goal is to discourage the activity. We are not discouraging the activity, even in the case of promises which are null or valid. So we understand that there’s no sanction about the activity, since that activity is what the legal system wants to achieve and not to discourage. Rules give you possibility, so the sanction of nullity is not that important because there’s no point in discouraging citizens from doing something. Also, in normal rule of conduct, the rule is meaningful even when detached from its sanction.
• Kelsen thinks that power-conferring norms are simply a fragment of the overall norm that ultimately lead to the sanctions. If A, then B (B is a sanction). But we need to deal with power conferring rules, for example, the rule about legislative power of the parliament; the overall norm is the bigger square and the smaller square is only a fragment of the bigger square. So Kelsen thought that all power-conferring norms could be included in norms in terms of sanctions. Kelsen wants to say that in a legal system there are a lot of kinds of norms, but in the end, the very important thing is that a norm gives a sanction connected to the behavior. If there are norms that don’t give sanctions, they are not really norms but they are fragments of the overall norm.

Hart considers this view and he gives to Kelsen the credits and the merit of formulating a wonderful rule: what is ordinarily thought of as the content of law, designed to guide the conduct of citizens, it is directed to officials and not to citizens, that have to apply certain sanctions if certain conditions are satisfied. Hart thinks that this is a formidable theory, but he thinks that it is distorted because norms are not mainly directed to officials, but they are directed to citizens. Law is a matter of norms directed to citizens to make them behave in a certain way. The goal of norms is giving modes of behaving to people and not to officials. Norms are for people and only secondarily for officials.

Range of applications: If we consider legal norms as orders we miss the fact that often legal norms apply also to those who enact them (legislature); but an order does not apply to who enacts the orders. They would be self-binding, but this is not possible.

Mode of origin: if we assume that legal norms are orders, we can’t explain customs. Hart criticizes Austin’s model of sovereignty too. The sovereign are the people that frame the law ultimately and the people to whom we must obey. Austin insists on this idea of obedience, in which people have the habit of obedience; Austin thought that this idea could work for all kinds of legal systems.

Hart tries to consider the problem of what is law considering the problem of what is sovereignty, not in general but looking at this model of Austin to see if new elements can emerge. He makes a mental experiment: mental experiment of Rex: Rex is an absolute monarch; the idea is that we have habit to obedience and Hart analyses the habit of obedience. What if Rex dies? His son Rex II starts to reign, but people will not have the same habit to obey, since habit takes time. When someone dies, there’s no habit. We have to wait and see if there will be habit as it was for Rex I. People don’t know if Rex II is capable of threatening them, which leads to habit of obedience. Hart wants to show that we just obey to rules.

To summarize: Hart considers Austin’s idea of sovereignty and then he shows that the view doesn’t work, but this failure shows us something relevant about sovereignty. Continuity and persistence of law are features of law, because the rules last. Rules define authority.

What are rules?

Compare the idea of a rule with Austin’s idea of habit:

• Social rules and habits have one thing in common: the behavior must be general and repeated by most of the people.
• First difference: for the group to have a habit it’s enough that behavior converges, but deviations from the regular course it’s not a matter of criticism; when there is a rule, deviations are considered as lapses or faults opened to criticism, and there is the pressure of conformity.
• Second difference: When there are rules, the criticism is justified.
• Third difference is implicit: the internal aspect of rule. When a habit is general, it is seen as the observable behavior of most of the group, but if a social rule is to exist, the behavior is seen as a general standard to be followed by the group as a whole. A social rule has an internal aspect because you reflect inside yourself what you should do; it’s an element of reflection. Rules are something that have the elements of elaboration, reflection, deliberation; so this makes rules different from habits because it’s a matter of someone just does (because it’s normal) and not a matter of what we should do whether if it’s right or not. Habits are automatic, mechanical, and people don’t think while doing those actions.

If you don’t think about what is right or wrong, you are in front of a habit. Rules are a deal of:

• Regularity of behavior considered right or wrong
• Use of normative language (should do something)
• Factual convergence
• The deviation of the factual convergence leads to criticism
• Good reason: consideration of the behavior as a good reason to criticize

Hart gives a description of acceptance of rules in very simple terms: general behavior in both habits and rules, and justified reaction in rules which doesn’t exist in habits. It is a rule only if people react, if there is criticism and reaction. Hart says that it is not so much a problem of the rules that all people share in a community, but a problem of the rules that officials of the system share in a community. Authority is based on rules but we cannot expect that all the people in the community to have such a knowledge of constitutional matters; so if you want to explain how authority really works, you must make a distinction between normal people who obey the system and officials who know and accept the rules of an authority. For people, it’s too complex to understand how authority really works, so they just obey, whereas officials are experts and know and accept rules of authority.

So Hart makes a distinction between:

• Passive aspect of citizens
• Active internal attitude of officials: rules are especially shared especially from officials.

Internal aspect of rules is not a matter of feelings: people live a psychological experience when they feel bound to behave in a certain way, but such feelings are neither sufficient nor necessary. It’s a matter of what you do/behavior. It is not necessary that you feel but it is necessary that you behave in a certain way. It is a standard for behavior and you apply elements such as right, wrong, ought to/should.